Gray v. Stillman

¶1(dissenting).

¶2It is well settled in this jurisdiction that a deed should be interpreted and the intention of parties ascertained in the same manner as other written contracts. Rush v. Champlin Refining Co., Okl., 321 P.2d 697; Jennings v. Amerada Petroleum Corporation, 179 Okl. 561, 66 P.2d 1069. The intention of the parties controls, and when a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible. The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others. The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning, unless used by the parties in a technical sense. 15 O.S.1951 § 152 et seq.

¶3Plaintiffs recognize that, generally, such terms as “heirs”, “bodily heirs”, and “blood heirs” in deeds denote general words of inheritance, not of purchase. They contend, however, that where from the entire context of the deed it appears that said terms are used as descriptio personarum, identifying specific persons in being, they are not words of inheritance, but of purchase, resulting in the vesting of a present interest in such persons under the deed.

¶4In this connection, it is specifically urged that the language immediately following the description of the property “and thereafter the title shall be transferred to his blood son Earsil Basil Farrand and to his blood daughter Pauline Belva Farrand-Gray,” constitutes an identification of those persons, plaintiffs herein, as the “blood heirs” referred to in the granting clause, thus rendering the latter term one of purchase, not of inheritance.

¶5No case has been cited wherein this court has considered the exact question; however, in Dunnett et al. v. First National Bank & Trust Co. of Tulsa, 184 Okl. 82, 85 P.2d 281, we stated that the word “heirs” in a trust agreement creating life estates in certain persons with limitation over to the heirs of the settlor under certain circumstances, should not be construed as a word of purchase unless clearly used with that intent.

¶6In 26 C.J.S. Deeds § 126, page 963, appears the following statement:

“ … The term ‘heirs of the body’ may be used as a word of purchase, or of limitation, depending on the grantor’s intent. The court will look to the entire instrument to determine in what sense the term is used. When used technically, such phrase is one of limitation and indicates all those persons who, on the death of the immediate ancestor, succeed to the estate from generation to generation. Such words are presumed to be used technically, as words of limitation, unless the contrary appears on the face of the instrument ; and under this rule a deed to a named grantee and his bodily heirs does not create a life estate in the named grantee with remainder to his children, but it vests the named grantee with a fee simple title.

“Where the grantor used the term ‘heirs of the body’ as descriptio perso-narum, as indicating that they and not the ancestor were to be the root of the succession to the property, the term will be construed a term of purchase and not of limitation.”

¶7In Thompson on Real Property, Permanent Edition, Section 767, it is stated:

*374“The term ‘heirs of the body’ may, however, be used to designate the children of the grantee, and in such case the children will take as purchasers, either in common with the parent, or in remainder after a life estate in the parent, in accordance with the intention of the grantor. When it appears from the context that the words ‘heirs’ or ‘heirs of the body’ are intended to have a broader or more popular meaning than is accorded to them in a technical usage, courts will lay hold of any expressions in the instrument indicative of such intention, and will give to the words the meaning which it appears they were intended to convey. Thus, where the phrase ‘heirs of the body’ and ‘children’ are used as synonymous, and it is clear that the technical phrase is not used for the purpose of limitation, but as a description of a class of persons, the ascertained intention of the maker of the instrument will prevail,' the two phrases will be held to mean the same thing, and the words ‘heirs of the body’ will be given effect as words-of purchase.”

¶8In Williams v. McConico, 36 Ala. 22, the deed was to “my said daughter, and the heirs of her body forever,” and also contained a recitation that the grantor wished to make permanent support for his' daughter “and her children.” Held, the term, “heirs of her body” was one of purchase and the children acquired a present interest under the deed, not by inheritance.

¶9In May v. Ritchie, 65 Ala. 602, the grant was in trust “for my said daughter Chris-tiana, and the heirs, of her said body.” It was further stated in the deed that it was for the support of “her childrén,”'ánd that after the daughter’s death the property was to be divided among her children. Held, the word “heirs” was used synonymously with the word “children”, and would be construed as a word of purchase, not of .inheritance, creating a life estate in the daughter with remainder iii her children.

¶10In Ely v. United States Coal & Coke Co., 243 Ky. 725, 49.S.W.2d 1021, 1024, the, grant was to Mary Day and “the heirs of her body begotten,” and other language in the deed indicated that by such term grantors meant “their grandchildren”.

¶11At page 1024 of the opinion in South Western Reporter, the court said:

“A doubtful or strained construction is not necessary to determine the class into which this case falls. When the ‘heirs of her body begotten’ are referred to as the grandchildren of the grantors, no room is left for doubt or cavil. But in further confirmation of the intent and purpose-of the grantors, the deed in' caption, granting, and ha-bendum clauses refers to grantees as ‘parties of the second part’ or ‘said second' parties.’ The grandchildren of grantors begotten of the body of Mary Day could mean none other than her children. There is no escape from the conclusion that this deed conveyed to-Mary Day an estate for life with remainder 'in fee to her children.”

¶12Other cases reaching a similar result are fibers v. Donovan, 371 Ill. 458, 21 N.E.2d 563; Turpin v. Jarrett, 226 N.C. 135, 37 S.E.2d 124; Whitson v. Barnett, 237 N.C. 483, 75 S.E.2d 391; Combs v. Combs, 294 Ky. 89, 171 S.W.2d 13; Waite v. Schmidt, 173 Kan. 353, 245 P.2d 975; Seymour v. Bowles,, 172 Ill. 521, 50 N.E. 122; Jarvis and Trabue v. Quigley, 10 B. Mon., Ky., 104; Goss v. Eberhart, 29 Ga. 545.

¶13' I am persuaded that we should follow-what appears to be the general rule that “heirs”, “bodily heirs”, “blood heirs”, and similar expressions in deeds, may be con-' strued as-words of inheritance or of pur-' chase, depending upon the intention of the grantor as ascertained' from the context of the entire instrument. Said rule is in complete harmony with the well-established rule in this jurisdiction that the cardinal-principle in construing deeds is to ascertain the intention of the grantor from the entire context of the deed. 15 O.S.1951 § 1:52 et seq.

¶14In the instant case, the granting clause-conveys tP “THE SAID PART — OF THE. *375SECOND PART, blood HEIRS AND ASSIGNS." Immediately following the description of the property, reference is made to Corles N. Farrand’s blood son Earsil Basil Farrand and to his blood daughter, Pauline Belva Farrand-Grey."

¶15In the habendum clause, reference is twice made to parties of the second part, as in Ely v. United States Coal & Coke Co., supra.

¶16I am convinced that grantors, by reference to Corles N. Farrand’s “blood son Earsil Basil Farrand” and “blood daughter Pauline Belva-Farrand-Grey” identified those persons as the “blood heirs” of Cories N. Farrand, as used in the granting clause. It would follow that “blood heirs” was used, not as a term of limitation or inheritance, hut as a word of purchase, and that plaintiffs acquired a present interest by the deed. This conclusion is strengthened by the language of the deed providing that after the lifetime of the grantors it “will then he delivered to Corles N. Farrand or his “blood heirs”. It appears more likely that grantors intended specific persons in being as recipients of the delivery of the deed, rather than whomever might qualify as “blood heirs” of Corles N. Farrand at some uncertain date in the future.

¶17In defendants’ brief it is stated that “plaintiffs in this case are the blood heirs under the deed above and the only children of Corles N. Farrand”. (Emphasis added.) This is in accordance with my construction that plaintiffs were identified in the deed as the persons intended by the term “blood heirs” in the granting clause.

¶18Having concluded that plaintiffs acquired their interest under the deed, and not by inheritance, the next question presented is whether they took an interest as tenants in common with Corles N. Farrand or a remainder in fee simple following the life estate in Corles N. Farrand.

¶19Under the rule in Wild’s case (6 Coke 16b, 77 Reprint 277), a conveyance to a named grantee and his children vests the fee simple title in the named grantee ’and his then living children as tenants in corn-mon, unless it appears from the deed that the grantor intended otherwise. United States v. 654.8 Acres of Land, D.C.Tenn., 102 F.Supp. 937; Hassell v. Sims, 176 Tenn. 318, 141 S.W.2d 472; Cutshaw v. Shelley, 13 Tenn.App. 580; Williams v. McConico, 36 Ala. 22; Goss v. Eberhart, 29 Ga. 545. At page 962 of 26 C.J.S. Deeds § 125, it is said:

“ … a very slight indication of an intention that the children shall not take jointly with the parent will suffice to give the estate to the parent for life, with the remainder to the children.”

¶20In Thoma v. Coats, 205 Okl. 688, 240 P.2d 736, we stated that no particular form of words is necessary to create a life' estate but such estate may be created when the language of the deed manifests such intent.

In the instant case, the deed provided:

“It is the wishes of the parties of the first part that the title of the above described land be kept in the name .of Corles N. Farrand during his lifetime and thereafter the title shall be transferred to his blood son, Earsil Basil Farrand and to his blood daughter, Pauline Belva Farrand-Grey.” (Emphasis added.)

¶21In Case v. Case, 207 Okl. 681, 252 P.2d 432, 433, the granting clause conveyed to party of the second part, her heirs and assigns, reserving a life estate in grantor. Following the reservation, the deed provided, as follows:

“It is intention of this deed that second party hereto shall take this property for her lifetime only and at her death it be divided equally between the heirs of my body.”

¶22Held, the d'eed conveyed to second party only a life estate rather than an estate in fee simple.

¶23In Claridge v. Phelps, 105 Ind.App. 344, 11 N.E.2d 503, where a qualifying clause following the' granting clause provided that after' death of the grantee the land should 'pass to her daughter, it was held *376clearly intended that grantee took a life estate with remainder to her daughter.

¶24The trial court found in the case now before us that the above-quoted language in the deed was merely “precatory” in nature and thus insufficient to create a life estate. I cannot agree. As heretofore observed, the cardinal principle in construing a deed is to ascertain the intention of the grantor. This is the same rule as is applied in the construction of wills. Noble v. Noble, 205 Okl. 91, 235 P.2d 670, 26 A.L.R.2d 1200; 84 O.S.1951 §§ 151, 152.

¶25In McAllister v. Long, 206 Okl. 623, 246 P.2d 352, 353, the will provided in part:

“Second. I give and devise all the rest and residue of my property, real and personal, of every kind and character and wherever located or situated, whether vested or contingent, at the time of my death to my beloved wife, Fannie M. McAllister, to be used by her in any manner that she may deem fit and proper during her lifetime, and at the time of her death, it is my wish and desire that said property be divided between my beloved children, that is sons and daughters, as follows, to-wit: …” (emphasis added).

¶26At page 353 of the opinion in Pacific Reporter, we said:

“Considering the will as a whole, giving significance to every paragraph and expression thereof, and taking into consideration the circumstances under which it was made, we are convinced that the testator intended 'wish and desire’ as used in the second paragraph of said will (above quoted) to mean the same as ‘it is my desire and I hereby direct’ used in the third paragraph of the will. Had the words ‘wish and desire’ as used in the will been meaningless, or at least nothing more than a mere whim or hope, the testator would not have directed in the third paragraph thereof that in the event of the contingencies mentioned therein that the interest of any son or daughter who should depart this- life before the testator ‘should pass and be divided into equal shares among their children.’ ” (Emphasis added.)

¶27In Appeal of Fox, 99 Pa. 382, it was held that in a will bequeathing certain property to the testator’s wife, and declaring that at her death “I wish my estate to go to” certain persons,, “wish” should be construed as a mandatory word, and not as a precatory word merely expressing the wish that his wife should give or bequeath the estate to such persons.

¶28In Froage v. Fisher, 165 S.W.2d 358, 291 Ky. 655, it was said that such words as “wish”, “desire” and others of kindred significance may be not merely of precatory character but may be mandatory in their dispositive effect where it is evident from the contextual language of the will and the circumstances under which it was written that they are to be so construed with a view to carrying out testatrix’ evident intent in using them. To the same effect, Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402; In re Hurlbut’s Estate, Sur., 64 N.Y.S.2d 575; English v. Ragsdale, 347 Mo. 431, 147 S.W.2d 653.

¶29The trial court construed the language in the instant deed, “It is furthermore the wishes of the parties of the first part (that grantors should successively have the use of the land during their respective lifetimes), as creating successive life estates in the grantors.”

¶30Applying the rule that where words in one part of a deed are construed according to one meaning, similar words in other parts thereof should ordinarily be given the same construction (26 C.J.S. Deeds § 86, page 830), I am of the opinion that the phrase, “It is the wishes of the parties of the first part that -the title of the above-described land be kept in the name of Cories N. Farrand during his lifetime and thereafter the title shall be transferred to his blood son Earsil Basil Farrand and to his blood daughter, Pauline Belva Farrand-Grey,” may not be considered as merely precatory and without effect in ascertaining the intention of grantors as evidenced by the entire instrument.

¶31*377I believe that by such language the grantors clearly intended to convey a life estate to Corles N. Farrand and the remainder in fee simple to his named children, and that such was the legal effect of the deed.

¶32Considerable testimony was introduced tending to show the construction placed upon the original and subsequent deeds by various members of the famñly. I have carefully examined all of this testimony, however, and find no acts or statements by plaintiffs inconsistent with their position in the instant case.

¶33Defendant cites Trumbla et al. v. State ex rel. Commissioners of Land Office, 191 Okl. 119, 126 P.2d 1015, as authority for the rule that the subsequent acts of the parties showing the construction they have put on a deed may properly be considered by the court in construing the deed. In that case, however, the acts considered by the court were .those of the parties sought to be bound, which renders that rule inapplicable here.

¶34Assuming that Corles N. Farrand may have acted inconsistently with plaintiffs’ position herein, the pertinent question is whether plaintiffs were bound or estopped thereby.

¶35In Cook v. Daniels, Mo., 306 S.W.2d 573, the defendants contended that plaintiffs should be estopped from asserting interests under a deed because they were bound by the warranties in the deed made by their parents to defendants’ predecessor in title. At page 576 of the opinion, the court said:

“On the contrary, these facts show there could be no estoppel. The applicable principle is that ‘where one is bound by an estoppel his heirs are also bound to the extent that the estoppel was enforceable against the ancestor on the ground that the heir stands in privity with the ancestor’; but ‘where the heir claims title to the property by purchase, and not by descent, a warranty will not create an estoppel as against such an heir.’ Thompson on Real Property, Sec. 2526; 31 C.J.S. Estoppel § 53, p. 230; 26A C.J.S. Descent & Distribution § 126, p. 831; 16 Am.Jur. 801, sec. 33; 19 Am.Jur. 812, sec. 155; Oliver v. Piatt, 3 How. 333, 412, 11 L.Ed. 622, 658; McSwain v. Griffin, 218 Miss. 517, 67 So.2d 479. In the Oliver case Justice Story said: ‘Another objection taken at the argument is, that Baum’s heirs cannot insist upon any title to the property in question because they are bound by the warranty of their ancestor in the conveyance thereof to Oliver. But this objection has no foundation whatsoever in law, whether the warranty be lineal or collateral; for the heirs here do not claim any title to the property by descent, but simply by purchase; and it is only to cases of descent that the doctrine of warranty applies.’ ”

And:

“We hold this deed was not testamentary and that it was a valid conveyance of a life estate .to the grantee with remainder in fee simple to the heirs of her body, reserving a life estate to the grantor. See Mattingly v. Washburn, 355 Mo. 471, 196 S.W.2d 624, 626 and cases cited; Bullock v. Porter, 365 Mo. 572, 284 S.W.2d 598. Therefore, the subsequent deed of plaintiffs’ father and mother could convey only their life estates to their grantee, under whom defendants claim; and those life estates so conveyed have terminated.”

¶36See also, McMichael v. Craig, 105 Ala. 382, 16 So. 883; Hall v. Condon, 164 Ala. 393, 51 So. 20; Thompson on Real Property, Permanent Edition, Section 748.

¶37Plaintiffs acquired their interest by purchase, not by inheritance. Hence, they are not bound or estopped by any acts of their ancestor, Corles N. Farrand.

¶38The evidence that defendant assisted her mother, Jessie V. Farrand, in paying off a mortgage on the land in question (which also covered other land) without any assistance from Corles N. Farrand or the plaintiffs, is not material. As stated in defend*378ant’s .brief, the sole question is, what interests were created by the original deed upon which both parties base their title?

¶39Defendant’s fourth and final proposition is that when the granting clause of a deed is uncertain, the court is justified in using the habendum clause to explain what estate was intended to be conveyed. Conceding the correctness of that rule, in view of the fact that plaintiffs were effectively named in the granting clause and that the habendum clause twice refers to parties of the second part, Said rule does not aid the defendant, but on the contrary, strengthens the position of plaintiffs herein.

¶40For the reasons assigned, I respectfully dissent.