Paul v. . Paul

Adams, J. The judge presiding at the trial was of opinion that John F. Paul’s deed conveyed the land in controversy to Mattie Paul and the children living and in esse as tenants in common. This would have been correct if the deed had been made to Mattie Paul and her children. Tate v. Amos, 197 N. C., 161. But it was executed “to Mattie Paul and the heirs of her body by Smith Paul begotten.” The estate thus created was under the old law a fee tail special (2 Bl., 113), which our statute enlarges into a fee simple. C. S., 1734. The law is 'clearly stated in Revis v. Murphy, 172 N. C., 579, and Jones v. Ragsdale, 141 N. C., 200. In the last case the conveyance was “to Zilphia S. J ones and her heirs by her present husband”; and at the time the deed was executed they had one living child. It was held that Zilphia and her child were not tenants in common, the statute (C. S., 1739) providing that a limitation to the heirs of a living person shall be construed to be the children of such person, being applicable only when there is no precedent estate conveyed to the living person. Marsh v. Griffin, 136 N. C., 334. *524 As that part of the deed set out above vests in Mattie Paul an estate in fee, the next question relates to the effect of the succeeding clause, “or upon failure thereafter her death to the nearest heirs of Smith Paul.” This inartificial language reminds us that, as said by Lord Chief Justice Wills, such a construction should he made of the words of a deed as is most agreeable to the intention of the maker, because “words are not the principal thing in a deed, but the intent'and design of the grantor.” Cobb v. Hines, 44 N. C., 343, 349. The intent must be such as is expressed in the deed and not such as may have existed in the grantor’s mind if inconsistent with the language he used. Melver v. McKinney, 184 N. C., 393; West v. Murphy, 197 N. C., 488. Technical rules of construction serve only as aids to this end, because the meaning of the deed depends largely upon the circumstances of the grantor as they appear in the deed itself. The maker of the deed had in mind an ulterior limitation — “upon failure.” Upon failure of whom? Evidently of “the heirs of her body by Smith Paul begotten.” The failure referred to is not the failure of the birth of issue; for Mattie and Smith Paul had two living children when the deed was executed. This fact, if no other, excludes the application of the principle stated in Sharpe v. Brown, 177 N. C., 294. There the conveyance, which was executed on 30 December, 1893, was “to Margaret "Wellons Stroud, and to the heirs of her own body, if she never have any heirs of her own body, then in that event she never does have any, then it is to go to M. M. Stroud and T. W. Stroud their life, and then to their children.” Margaret intermarried with R. C. Sharpe in 1915 and in 1917 a child was born of the marriage. It was held that the grantee took an estate tail, converted into a fee, and that the birth of issue defeated the limitation over. The principle was applied in Bank v. Murray, 175 N. C., 64. It is manifest, we think, that the grantor did not intend that the ulterior limitation should be barred by the birth of issue, for the reason, as stated, that there were living children born of the marriage when the deed was executed. The failure of bodily heirs must therefore refer to a later period — that is, the death of Mattie Paul. We construe the deed as expressing an intention to convey the land to Mattie Paul and the heirs of her body by Smith Paul begotten, and upon the failure thereof (of such issue) living at her death to the nearest heirs of Smith Paul. By this construction Mattie Paul took an estate in fee simple, defeasible upon her dying without bodily heirs by Smith Paul, living at her death; and as Estelle McOotter acquired the title of Mattie Paul the plaintiffs have no interest in the land and cannot maintain the present action. Willis v. Trust Co., 183 N. C., 267; Williams v. Blizzard, 176 N. C., 146; Sessoms v. Sessoms, 144 N. C., 121; Smith v. Brisson, 90 N. C., 284. Judgment reversed.