Tillotson v. Carpenter

CAMPBELL, J. The sole question upon this appeal is as to the proper construction of a real estate deed made, executed, and delivered by one William Tillotson (fee owner of the premises described therein) in March, 1891. Relevant facts appear from the record as follows: William Tillotson was first married some time prior to the year 1888. Of this, William’s first marriage, there was born one child and one only, a son named Charles, who survived until the year 1908, when he died. Not long after the birth of her son Charles, William’s first wife died. After her death, and in June, 1888, William remarried; the name of his second wife being Lizzie. William had acquired fee title to the realty involved in this litigation prior to his marriage to Lizzie. Two years after their marriage, and in June, 1890, there was born to William and Lizzie a son, Andrew. Some ten months thereafter, and in March, 1891, William executed and delivered and caused to be recorded the deed in question, which was in form as follows: “Know all men by these presents: “That I, William Tillotson, of the county of Union, state of South Dakota, for the consideration of the sum of one dollar in hand paid by second party, the receipt whereof is hereby acknowledged, and the love and affection I bear toward: my wife, Lizzie Tillotson, of said county and state, party of the second part, do hereby at the decease of my body, and during the natural life of said second party and unto the heirs of her body, if then there be such, otherwise to my heirs, grant, sell and convey unto the said Lizzie Tillotson and her said heirs forever, within the provisions above written, the following described real property situate in Union county, South Dakota, to-wit, lots three and five (3 and 5) and the southwest quarter of the northwest quarter of section ten (10) in township ninety-two (92) of range forty-nine (49), according to government survey— “To have and to hold the same together with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining— “And I hereby covenant with the said Lizzie Tillotson and her said heirs that I am lawfully seized in fee simple of said real *572 property — that the same is free from all incumbrances, except a mortgage of eight hundred dollars duly executed and of proper record securing said sum, the said mortgage being upon other and the above described real property, the other real property in said mortgage described _ to be first subjugated to the payment of said mortgage. “That I have good right and lawful authority to sell and convey the above described realty, and I and my heirs will forever warrant and defend the title as hereby conveyed to the same, against all lawful claims, adverse to this title hereby conveyed. “Witness my hand and seal this the 13th day of March, A. D. 1891. “William Tillotson [Seal.]” This instrument was duly signed, sealed, witnessed, acknowledged, and recorded in the office of the register of deeds of Union county, S. D., on the day of its date. At the time of the execution thereof the family home of William and Lizzie was upon the real estate described in the deed; they having resided there ever since their marriage in June, 1888. Some little time after the execution and recording of the deed in question the family removed to Akron, Iowa, where they continued to reside until William’s death in May, 1893. Prior to William’s death, however, and in May, 1893, there had been born to William and Lizzie a second child, a daughter, Anna Mae. Five months after the death of William Tillotson, and in October, 1893, his widow Lizzie married one Joseph Beach, to which marriage there were born six children. Lizzie Tillotson Beach died in May, 1930, having been in undisputed possession of the real estate described in William Tillotson’s deed of 1891 from the time of William’s death in 1895 to and until her own death. There survived Lizzie Tillotson Beach her second husband, Joseph Beach (who died in April, 1931), her two children by William Tillotson (who may be conveniently termed the Tillotson children), and her six children by Joseph Beach (who may be conveniently termed the Beach children). After the death of Lizzie Tillotson Beach, her two children by William Tillotson instituted the present proceeding in the form of an action to quiet title to the realty in question, alleging that they were the fee owners thereof. Upon joinder of issues and trial, the circuit court adjudged that the fee title to the property was vested, *573 not in the two plaintiffs, but in all eight of the children of Lizzie Tillotson Beach ('being the two plaintiffs, the Tillotson children, and the six Beach children), as tenants in common. From so much of the judgment as determined each plaintiff to be the owner of an undivided one-eighth of the premises only (instead of an undivided one-half thereof, as plaintiffs claimed), the plaintiffs have appealed. It is conceded by all parties that the deed in question creates, first, a life estate by reservation in William the grantor; second, a life estate in Lizzie; and, third, a fee remainder upon the termination of the two life estates. It is also conceded that if the heirs or heirs of the body of Lizzie take any interest in this property in remainder they take the same by purchase under the deed and not by descent from Lizzie; section 329, Rev. Code 1919, abrogating in this state the rule in Shelley’s 'Case. The only difficulty in the case arises in connection with the construction and interpretation of the deed with reference to the grant of the fee remainder after the two life estates. The deed recites “ * * * I * * * do hereby, at the decease of my body, and during- the natural life of said second party and unto the heirs of her body, if then there be such, otherwise to my heirs, grant, sell and convey. * * * ” This language is somewhat garbled, and indicates upon its face that it w-as not the product of a skilled draftsman, 'but upon simple grammatical analysis the proper interpretation seems fairly apparent. The phrase “at the decease of my body” is an adverbial phrase modifying the verbs “grant, sell and convey.” The use of that phrase constitutes the reservation of the life estate in William the grantor and marks the point of time at which the grant to others is to begin. The clause “if then there be such” is a conditional clause further modifying the verbs “grant, sell and convey” in so far as those verbs relate to a gift to the heirs of the body of Lizzie. The adverb “then” in the conditional clause “if then there be such,” as here employed, is a demonstrative adverb of time, and by custom, usage, and meaning refers to a precise, specified point or instant of time. When we examine the sentence structure for a specified point of time to which “then” may conceivably refer, we find one and one only, to wit, “at the decease of my body.” It is true that between that phrase and the adverb “then” appears the words “and during- the natural life of *574 said second party.” Those words, however, do- not and cannot express a point of time. They express length, duration or passage of time, and are merely the measure of the extent of the estate given by the deed to Lizzie, to wit, an estate during her natural life or for the term' of her life. Suppose that there had been no gift of a life estate to Lizzie- and that the deed had read, “I * * * do hereby at the decease of my body, unto the heirs of Lizzie’s body, if then there be such, otherwise to my heirs, grant, sell and convey.” Had the deed so read there could be no- possible question about -the proper interpretation of the language. So far as concerns the heirs of the body of Lizzie, we do not think that either the grammatical structure or the meaning of the language is in any manner changed by the creation and interpolation of the prior life estate in Lizzie. It is, of course, true that in a technical sense there could be no heirs of the body of Lizzie until Lizzie died, but manifestly those words were not here used in a technical sense to denote persons who would take by descent from Lizzie, but merely to designate and describe a class of persons who (subject to the prior life estate) were to take by purchase under the deed at the decease of the grantor’s body “if then there be such.” The gift to them could not be effective until the termination of Lizzie’s prior life estate by her death and at the instant of her death and before entering into the enjoyment of the gift to them they would, of course, be technically heirs of her body, though perhaps not the sole heirs of her body -at the date of her death. The postponing of the gift in enjoyment until Lizzie’s death does not, however, prevent the earlier designation of the class and determination of its constituent members, and we think a proper construction of the instrument is identical with what it would have been if, instead of using the words “unto the heirs of her body, if then there be such,” the grantor had said “unto her children, if then there be such.” We think the grantor used the words “heirs of her body” in this deed only for the purpose of describing a class who were to partake of his bounty, membership in the class to be ascertained as of the mement “of the decease of [grantor’s] body.” By the language he used he designated and described those persons who, at. the moment of grantor’s death, would be presumptive heirs of the body of Lizzie; those who, if Lizzie also died at that instant, would be in law the heirs of her body. Cf. Heath v. Hewitt, 127 *575 N. Y. 166, 27 N. E. 959, 13 L. R. A. 46, 24 Am. St. Rep. 438; In re Scott’s Will (Sur.) 204 N. Y. S. 478; Tinder v. Tinder, 131 Ind. 381, 30 N. E. 1077; Powell v. Hayes, 176 Ark. 660, 3 S. W. (2d) 974; Tharp v. Yarbrough, 79 Ga. 382, 4 S. E. 915, 11 Am. St. Rep. 439; Roberson v. Wampler, 104 Va. 380, 51 S. E. 835, 1 L. R. A. (N. S.) 318; Whitworth v. Whitworth, 205 Ky. 247, 265 S. W. 801; Fullager v. Stockdale, 138 Mich. 363, 101 N. W. 576. And indeed to place any other interpretation upon the instrument before us would compel an utter disregard of the words “if then there be such.” Construing the language of the deed as a whole therefore, it seems very clear that -the primary gift of the fee was made to such children of Lizzie as might be in existence (whether born or en ventre sa mere) at the death of the grantor, which children would be presumptively heirs of the body of Lizzie from their birth and, at grantor’s death, and would, in fact, become heirs of her body by her death before the termination of her prior life estate would permit them to enter into the enjoyment of the fee granted them. See section 330, Rev. Code 1919. This construction of the deed from within its own four corners seems quite clearly the proper one, and, in fact, it seems so plain that it can hardly be said that the deed is ambiguous in this regard. If it should be thought that the deed is ambiguous, then we believe the construction we have above indicated is even further fortified. If the deed be considered ambiguous, resort may be had extrinsically to the purpose and object of the conveyance, the situation of the parties, and -the intention of the grantor. The deed was without consideration other than love and affection, and, while it was a deed as distinguished from a will and probably irrevocable, nevertheless it was the instrument by which the grantor sought to control the disposition of -this property after his death. It seems quite apparent, as well as natural, that the grantor might desire to make this gift to the use of his wife for life and then ho their children, or if such children fail to survive their parents then to his other heirs, retaining the land in his own blood and to those who would be natural objects of his bounty. Cf. Frosch v. Monday, 34 App. D. C. 338. It is hardly conceivable that this grantor would intend to make a gift, under the circumstances here shown, to children whom his wife might have as the result of her marriage to a third person after his death, which children would be strangers to his *576 blood, not natural objects of his bounty, and much more remote from him than collateral heirs of his wife whom he very plainly did not intend to benefit in any case. To hold: that by this deed children of Lizzie, born of another marriage after the death of William, gratuitously receive three-fourths of the property involved is to make a disposition of the property which the grantor assuredly never contemplated or intended. We very much doubt whether the language of the deed is properly susceptible of any such interpretation, and certainly we are still further from thinking that it imperatively requires any such interpretation. We are of the opinion that by this deed the fee remainder was given to those children of Lizzie who might be in existence, in contemplation of law, at the decease of the grantor, subject to the condition that they could not enter into enjoyment of the fee until Lizzie’s death terminated her prior life estate. The appellants constituting the members, and the sole members, of the class thus described, and Lizzie’s life estate having now terminated by her death, we think appellants are entitled to possession and fee title. The judgment appealed from is reversed, and the cause remanded, with directions for the entry of conclusions and judgment upon the present findings in harmony with the views herein indicated. POLLEY and WARREN, JJ., concur. ROBERTS, J, and RUDOLPH, P. J., dissent.