Johnson Bros. v. Lee

Hoke, J. It is now held for law in this jurisdiction that the premises or granting clause of a deed is not to be considered as always controlling' in reference to the estate conveyed, but “if on a perusal of the entire instrument, including the habencfum, it clearly appears that a lesser *756 estate was intended tban that conferred in the premises; such a construction should prevail, and the intent of the grantor be given effect.” In a case before the Court at the present term, Bagwell v. Hines, ante, 691, the position was considered, and the view of the Court as it now prevails concerning it was expressed as follows: “It was formerly held in this jurisdiction, and with some strictness, that the habendum of a dqed was not allowed to destroy an estate or interest definitely conveyed in the premises or to create an estate that was necessarily repugnant to it. Wilkins v. Norman, 139 N. C., 39; Blackwell v. Blackwell, 124 N. C., 269; Rowland v. Rowland, 93 N. C., 214; Hafner v. Irwin, 20 N. C., 570. The position was somewhat modified in the well-considered case of Triplett v. Williams, 149 N. C., 394, opinion by Associate Justice Brown, wherein it was held that except when otherwise controlled by an arbitrary rule of law, as by the rule in Shelley’s case, the question was largely one of intent, and if on a perusal of the entire instrument, including the habendum, it clearly appeared that a lessér estate was intended than that conferred in the premises, such a construction should prevail and the intent of the grantor be given effect, a case that has been cited with approval in numerous decisions of the Court.” In the Bagwell case it was held that the instrument having in express terms conferred an estate in fee simple in the premises, the' subsequent clauses in apparent modification of this estate were not sufficiently definite to effect a change of the granting clause, and the estate in fee was upheld. In the present case, however, the granting clause does not definitely convey an estate in fee simple. On the contrary it purports to sell and convey the land to “A. ~W. Lee, his heirs and assigns, subject to the limitations hereinafter set forth.” And these limitations, appearing in the habendum, are as follows: “To have and to hold the-above-described lands, to the said A. ~W. Lee for and during the period of his natural life, and after his death to the children of A. W. Lee, both those now living and those that may hereafter be born to him, in fee simple, as set forth in the deed of J. B. Lee and wife, Charity C. Lee”; thus clearly conveying to A. ~W. Lee an estate for life, remainder to his children in fee. It is insisted for appellant that as this estate was created and its extent declared by the deed of 1884, at a time when A. W. Lee had no children, he took a fee simple, and we are cited to Cole v. Thornton, 180 N. C., 90; Silliman v. Whitaker, 119 N. C., 92; Hunt v. Satterwhite, 85 N. C., 73; Dupree v. Dupree, 45 N. C., 164, and other decisions, in support of the position. But in those and other like cases the estate was presently conveyed or attempted to be conveyed directly *757 to the children, and under the established principle that in common-law deeds there must always be a grantee presently capable o£ taking the estate, only children living at the time the deed was made conld take (extended by statute, C. S., 1738, to unborn children in esse), it was therefore held that where a grant or deed is to A. and his or her children, and there were no children alive at the time, the grantee would take the entire estate, a fee tail, at common law, converted by our statute into a fee simple. O. S., 1734. The cases cited, however, and the principle they approve and illustrate do not apply to an estate conveyed in remainder after a freehold estate first given, and in such deed children, prospective grantees, born during the existence of the freehold estate would take and hold their interest. Such estate being by way of contingent remainder until birth of a child. Thus, in Shepherd’s Touchstone, pp. 229-234-235, after treating of the necessity of a grantor, grantee and a thing granted in order to a valid grant, the author, as to the grantee, among other things, says: “There shall be a person in being at the time of grant made (if he be to take immediately, etc.), but if he be to take by way of remainder it is not necessary that he should be in being so as there be a preceding estate of freehold to support a contingent remainder,” etc. This statement of the learned author is fully recognized in this State in Dupree v. Dupree, 45 N. C., 164, in Newsome v. Thompson, 24 N. C., 277, and other cases, and is directly approved and applied with us in Powell v. Powell, 168 N. C., 561. In accord with these rulings the life estate of A. W. Lee, appellant, is sufficient to uphold the estate in his children, though not in esse at the time, by way of contingent remainder till they were born, and thereafter as owners of a vested remainder. ¥e are of opinion that the question presented has been correctly decided by his Honor, and his judgment is Affirmed.