Warn v. Brown

Mr. Justice Gordon delivered the opinion of the court, March 5th 1883. This case turns entirely upon the construction of the deed of Mary Doctor to Nathaniel Allen and Hannah his wife, dated May-10th 1831. Beyond'that part,'therefore, of the , learned judge’s opinion which we have in the seventh assignment of error, we need not go, for if it be true that, under that [352] deed Allen and wife took an estate, in the land in controversy, for their lives and the life of the survivor of them, with a vested remainder in fee to their children, then, since under the sheriff’s deed, of March 22nd 1838, to Schuyler, the defendant held Allen’s right, it must necessarily follow, that the plaintiffs, the remainder men, have no right of entry or action until his death, the Statute of Limitations could not begin to run, as to them, until that time: Ege v. Medlar, 1 Nor. 86. If, however, the learned judge was mistaken in this view of the case ; if by that deed Allen and wife took a fee in themselves, or if, under it, they held but in trust for their children, and did not thereby take a life estate to their own use, then, and in that event, it is certain, that, as against the defendant, the plaintiffs had no title, for they were effectually barred by the statute. We cannot, however, adopt the suggestion of the counsel for the plaintiff in error that a fee was vested in Allen and wife'by virtue of the Mary Doctor deed. Possibly such might be the result if we consulted only the habendum of that instrument, for the word “ heirs” as therein used, is ordinarily a word of limitation, and is definitive, not of the persons who are to take, but of the estate granted, and we agree that this word is to be accepted in its technical sense, unless the- context requires a different construction : Huss v. Stephens, 1 P. F. S. 282. Here, however the context evidently requires that the word “ heirs ” be taken to mean “children,” for the premises very clearly indicate that the estate, whatever it was, was intended to be vested, not in the grantees, who took but a trust, but- in “their children, their lawful heirs, namely; William Allen, now begotten, and to their children and heirs to be begotten, being the issue of her, the said Hannah Doctor, by her husband Nathaniel Allen.” Here we see the words “ children ” and “ heirs ” used indiscriminately, and that their “ children” or “heirs ” must take as purchasers, there can be no doubt, since one of them is mentioned by name. It follows, therefore, that in order to harmonize these two parts of the deed, we must, for the word “heirs” in the habendum, substitute “children.” In other words, we must treat this word “ heirs ” as a designation of persons rather than of estate. Moreover, as the whole of the preceding context precludes the idea of an estate of any kind other than a trust, in Nathaniel and Hannah Allen, we cannot allow the habendum to defeat the clear and obvious intent of the grantor. The purpose of the habendum is to define the extent of the interest granted, if that interest has not been already defined, and whilst it may be used to explain or qualify the grant, as set forth in the premises, it cannot be used to defeat it: Tyler v. Moore, 6 Wr. 374. [353] Nor, indeed, does this habendum require a construction which would make it repugnant to the body of the deed, for, as we have already intimated, the words “ in trust for their heirs forever,” evidently has reference to the previous use of the word “ heirs ” as a synonym for the word “ children.” But the most careful examination of the deed fails to discover a life estate in Allen and wife to their own use. It may, indeed, be regarded as a matter of doubt whether this deed vests a fee in any one, and certainly not in the trustees, for they have only a life estate in trust, and that, as we have already said, not for their own use, but for the use of their children. It is not open to question, that for these children, they were to hold something in trust, but as the deed gave them nothing but a life estate, what else had they to hold as trustees % And if in this there was no use for the children, where shall we look for such use % This deed certainly puts into the parents nothing but a trust, to run for the period of their lives, for the benefit. of their issue, and as there were no active duties to be performed by the trustees, we may regard the trust as executed, from its inception, in the equitable owners. But whether this trust was executed or unexecuted, or whether the estate of the beneficiaries was only for the life of the parents or in fee, is of no special moment in the consideration of this case. At all events, the equitable title, whatever may have been its character, was, from the beginning, in the cestuis que trust, and to them, either by themselves or their trustees, belonged the right of possession, and also the right to recover that possession as against an intruder, by entry, or by an action of ejectment. From this statement of the case it follows, that the right of entry of any and every person, whether sui juris or under disability, was barred, as against John S. Warn, the adverse claimant, and those holding under him, after thirty years from the date of his entry: Hunt v. Wall. 25 P. F. S. 413. The judgment is reversed and a new trial ordered.