Cook v. Flanders

Hines, J. (After stating the foregoing facts.) The proper decision of this case depends upon the correct construction of the deed under which both parties claim. The pertinent terms of this instrument are set out in the foregoing statement. The plaintiff contends .that under this deed the child or children of the two life-tenants took respectively in remainder the portions of the land thereby conveyed, and which fell to the life-tenants under the division thereof made between the life-tenants upon the death of the grantor. In other words, the plaintiff contends that the only child of H. E. Maddox, upon his death, took as remainderman the portion of said land which he got under said division between himself and his co-life-tenant, and that the children of Mrs. Eains took as remaindermen, upon her death) the portion of said lands which she acquired under said division. The defendants, who are children of Mrs. Eains, contend that upon the death of the two co-life-tenants, notwithstanding said division of said lands between the latter, their children took in remainder the whole of said lands as tenants in common, and that the same should be divided among all of the grandchildren of the grantor in said deed, per capita, and not per stirpes. This deed was very inartificially drawn, and its construction is not free from doubt. The language, “between Mrs. Nancy J. Maddox, . . of the one part, and H. E. Maddox and Mrs. M. A. Eains, wife of W. J. Eains, their lifetime, and at their death to be equally divided between my grandchildren,” found in the statement of the parties to the instrument, would seem to indicate that the grantor intended to convey to her two children, H. E. Maddox and Mrs. M. A. Eains, a life-estate in the lands conveyed by this [289] instrument, and that at the death of these life-tenants this land should be equally divided between all her grandchildren, per capita and not per stirpes. The language in the granting clause, “that the said Mrs. Nancy J. Maddox for and in consideration of the sum of five dollars and also for the love and affection she has and bears to her children and grandchildren, the children of H. E. Maddox and Mrs. M. A. Eains, . . has granted, bargained, sold, aliened, conveyed, and confirmed” the described land “unto the said H. E. Maddox and M. A. Eains, and their bodily heirs after their death, the same to be used by me until death, after then to my children and grandchildren, . . their heirs and assigns,” standing alone, would seem to manifest an intention to convey to her children a life-estate in the lands conveyed by this deed, with remainder to' all her grandchildren. But in the granting clause the grantor reserves unto herself the control of, and also the rents and profits arising from, said land for her support until her death, and then provides that after her death the land conveyed by said deed is “to be equally divided between” her “children, and at their death to be. equally divided between their children.” This provision modifies and limits the meaning of the language above quoted from the statement of the parties to the deed, and the above language quoted from the granting clause of this instrument. It provides for the division of the tract of land conveyed by this deed between the life-tenants on the death of the grantor. The purpose evinced by this provision was to have this tract of land divided into two equal portions, and to vest in each life-tenant title to and possession of one of these portions. The purpose of the grantor was .to make her two children, not tenants in common of the tract of land conveyed by her deed, but tenants in severalty as to the respective portions of this land falling to them under its division upon her death. The provision for the division of this land at the deaths of the life-tenants, among their children, refers, not to the division of the whole tract among the grandchildren, but to the division of the portion of the whole tract, received by each life-tenant, among his or her children. Division among the children of the grantor was to take place and did take place at her death. The division among the children of the life-tenants was to take place upon the deaths of their respective parents. This division was to be among the children of the life-tenants severally, and not jointly. As a [290] life-tenant died, the portion of said tract going to such life-tenant was then to be divided. How ? Clearly, not among the children of both life-tenants, but among the children of the life-tenant so dying. Mrs. Rains died in 1901; and upon her death her part of said lands was taken possession of and has been used and enjoyed by her children. H. R. Maddox did not die until September, 1924. No division of his portion of this land could be made until his death. We think it fairly clear that it was not the intention of the grantor that when Mrs. Rains died the portion of this land which she received upon its division between her and her brother was to be equally divided between her children and the child of H. R. Maddox. It was the intention of the grantor'that this portion of the land should be divided between the children of Mrs. Rains at her death. We think it fairly clear that it was not the intention of the grantor that the portion of this tract of land which fell to H. R. Maddox under the division between him and his sister was to be, at his death, equally divided between his child and the children of Mrs. Rains. This construction seems to be in accordance with parental instinct and affection. A parent naturally wishes to give to each of his children an equal share of his estate, and he expects such share to descend to the children of such child. So it is well settled, in the construction of wills, that, in the absence of anything to the contrary, the presumption is' that the ancestor intends that his property shall go where the law carries it, which is supposed to be the channel of natural descent, and that to interrupt or disturb this descent, and to direct it in a different course, requires plain words to that effect. Mayer v. Hover, 81 Ga. 308 (7 S. E. 562). The same principle is applicable to the construction of the deed under consideration. So we are of the opinion that under this deed this tract of land was to be divided between the two life-tenants; and when this was done, the portion falling to such life-tenant went to the child or children of such life-tenant in remainder upon the' death of the parent. Is the plaintiff estopped from asserting title to the premises in dispute by reason of the fact that his grantor, Maude Gatlin, would be estopped from asserting a claim thereto by reason of her conduct in agreeing to a division of all the land in Mrs. Nancy J. Maddox’s deed among all the grandchildren of the latter? An [291] estoppel may arise by deed. Such an estoppel is mutual. Not only the parties to the deed, but the privies of each, are estopped from setting up any title inconsistent with the deed. McClesky v. Leadbetter, 1 Ga. 551; Keaton v. Jordan, 52 Ga. 300; Taylor v. Street, 82 Ga. 723 (9 S. E. 829, 5 L. R. A. 121). But estoppel by deed can arise only from a valid instrument. Taylor v. Allen, 112 Ga. 330 (37 S. E. 408). Without delivery a deed conveys no title. Maddox v. Gray, 75 Ga. 452. The deeds to effectuate this division were prepared, but not signed by all the parties, and were not delivered in consummation of thfe division, but delivery of these deeds awaited the proper execution and return of the deed sent to Luther Bains, in Chicago, for its execution. Before this was done, Maude Gatlin executed her deed to the premises in dispute to Cook. So the plaintiff was not estopped by deed from asserting title to the land. Maude Gatlin did not make a valid gift.of the land in dispute to the defendants or either of them. To make a gift of land there must be a 'conveyance in writing. Civil Code (1910), § 4146; Wyche v. Greene, 11 Ga. 159. Was Maude Gatlin estopped by matters in pais? Such estoppels are not generally favored. Evans v. Birge, 11 Ga. 271; Groover v. King, 46 Ga. 101; Crim v. Crawford, 47 Ga. 628; City of Atlanta v. Hunnicutt, 95 Ga. 143 (22 S. E. 130). Under this division Maude Gatlin got nothing to which she was not entitled under the law. She received nothing from -the other parties to the division. It would not be more inequitable and unjust for her to assert title to this land than for the defendants to keep her land. Besides, the estoppel relates to the title to land. In such a case “the party claiming to have been influenced by the other’s acts or declarations must not only be ignorant of the true title, but also of any convenient means of acquiring such knowledge. Where both parties have equal knowledge or equal means of obtaining the truth, there is no estoppel.” Civil Code (1910), § 5737. So we are of the opinion that the plaintiff was not estopped from asserting his title to the premises in dispute. The above rulings make it unnecessary to consider other assignments of error; and we are of the opinion that the trial judge erred in directing a. verdict for the defendants, and in not granting a new trial. Judgment reversed. All the Justices concur.