Bennett v. Humphreys

• Court: Kansas Supreme Court
• Writing for the Court: HOCH, Justice.
• Citation: Bennett v. Humphreys, 159 Kan. 416, 155 P.2d 431 (Kan. 1945)
• Decision Date: 27 January 1945
• Docket Number: 36262.
• Parties: BENNETT v. HUMPHREYS et al.

155 P.2d 431

159 Kan. 416

BENNETT v. HUMPHREYS et al.

No. 36262.

Supreme Court of Kansas

January 27, 1945

Appeal from District Court, Linn County; Harry W. Fisher, Judge.

Action by J. W. Bennett against L. G. Humphreys and others to quiet title to realty. From a judgment for defendants, the plaintiff appeals.

Reversed with directions.

Syllabus by the Court.

1. In the construction of deeds, as well as of wills, the intention of the grantor, as gathered from an examination of the instrument as a whole, is the cardinal consideration.

2. Where the instrument itself is ambiguous as to the intention of the grantor, the surrounding facts and circumstances attendant upon execution of a deed, may be considered in determining the intention.

3. No particular words are necessary to creation of a life estate. Such an estate may be created by any words clearly indicating intention to do so.

4. Restriction upon alienation is not necessarily repugnant to creation of a life estate. It often serves to define the nature of the grantee's interest and is frequently used in creation of life estates.

5. The word 'children' as used to designate those who are to take under a deed is ordinarily a word of purchase rather than a word of limitation.

6. Although the word 'children' is not ordinarily construed to include grandchildren, it is properly construed to include grandchildren when the context, or the surrounding facts and circumstances, in case of ambiguity, make it clear that the grantor so intended.

7. If there appears to be a doubt or uncertainty as to the grantor's intention in using the word 'children' there is a reasonable presumption against disinheritance of a grandchild whose parent is dead.

8. In an action to quiet title, a deed in controversy contained the following paragraph, immediately following the granting clause: 'It is part of consideration of this deed that John Bell Bennett cannot sell this property during his life time and at his death is to be divided equally among his children.' Construing the deed, in the light of the facts and circumstances set out in the opinion it is held: (a) The grantee, the first taker, took a life estate; (b) upon the death of the first taker title passed in equal undivided shares to a son of the grantee and a granddaughter of the grantee whose mother, daughter of the grantee, had died when she was less than one year old, and who had lived with and been reared by her grandparents as their own child.

Harry C. Blaker, of Pleasanton, for appellant.

W. W Edeburn, of La Cygne, for appellees.

HOCH Justice.

This was an action to quiet title to real estate. The defendants prevailed and the plaintiff appeals. The issue turns on construction of a deed.

Isaac Bennett was an early settler in Linn county. He and his wife homesteaded a quarter section of land and continued to make it their home until their death. In 1928, being advanced in years, they decided to convey the land to their two children,--a son, John Bell Bennett, and a daughter, Lillie Bennett Epperson. Two conveyances, identical in terms except as to the land description and the stated consideration, were executed. Under one deed the north eighty--or an interest in it--went to the daughter for a stated consideration of thirty-two hundred dollars. Under the other deed the south eighty--or an interest in it--went to the son, John Bell Bennett, for a stated consideration of six thousand dollars. The latter deed is the one here involved.

Before proceeding with recital of facts we think it will promote clarity to note the provisions of the deed which give rise to this controversy. Omitting formal parts, the pertinent portions were as follows:

'Said parties of the first part (Isaac Bennett and wife) in considering of the sum of Six Thousand and no/100 Dollars to them paid by said party of the second part the receipt whereof is hereby acknowledged, do by these presents, grant, bargain and sell and convey and confirm unto said party of the second part (John Bell Bennett), his heirs and assigns, all of the following described Lots, tracts or parcels of land'--(description follows).

' It is part of consideration of this deed that John Bell Bennett cannot sell this property during his life time and at his death is to be divided equally among his children.

'To have and to hold * * * unto his heirs and assigns forever.' (Italics supplied)

When the deed was given in 1928 John Bell and his wife Belle, and their granddaughter, Alice Irene, were living on the place, together with his father and mother. They had had two children--a son, J. W., and a daughter, Leliah Maude. The son J. W. was then grown and living elsewhere. The daughter, Leliah Maude Bennett Jarred, had died in 1917, while living on the place with her parents and grandparents. Alice Irene, her daughter, was less than a year old when her mother died. After her mother's death she continued to live with her grandparents and great grandparents and was more than eleven years old when the deed was executed.

After executing the deed in 1928 Isaac Bennett and his wife, together with his son, John Bell, his wife and granddaughter, continued to live on the homestead. When the father, Isaac, died he was well along in his nineties. His wife had predeceased him. John Bell and family continued living on the place until his death on January 28, 1944, between four and five years after the death of his father. When John Bell's parents moved onto the place in an early day he was seven years old. He had lived all of his life there with the exception of a year or two. There he had brought his bride, and there his two children were born.

John Bell Bennett died intestate, leaving as his heirs at law the widow, Belle Bennett, the son, J. W. Bennett, and the granddaughter, then Alicen Irene West. A short time thereafter the instant action was brought by the son, J. W. Bennett, to quiet title to the south eighty, as against his mother, Belle Bennett, and his niece, Alice Irene West. There were other defendants who need not be noted here as their interests, if any, are not involved in this appeal. The primary issue, joined by appropriate pleadings, related to the nature of the title which passed under the deed. The plaintiff contended that his father, the grantee, got a life estate only and that upon his father's death the fee title passed to him as a remainderman. Defendants, Belle Bennett, the widow, and Alice Irene West, the granddaughter, contended that the provision of the deed, shown in italics, supra, was void; that fee title had passed to the grantee and upon his death, intestate, title would descend to the heirs.

Trial was had, and after overruling demurrers to the answers and receiving testimony offered by the plaintiff, the trial court made findings of fact--which are not challenged--and conclusions of law favorable to the defendants. The trial court had also submitted a memorandum opinion, when overruling the demurrer. The substance of the court's conclusions of law was that the provision that the grantee 'cannot sell this property during his lifetime' was repugnant to the granting and the habendum clauses and void as a restriction upon alienation; that the word 'children' as used in the clause 'at his death is to be divided equally among his children' was equivalent, as used, to the word 'heirs,' and that therefore the grantee got a fee title. Judgment was entered giving the three heirs, as tenants in common, undivided interests as follows: one-half to the widow, Belle Bennett, and one-fourth each to the son, J. W. Bennett, and the granddaughter, Alice Irene West. This appeal followed.

Two primary questions are here presented. First, did the grantee get fee title or a life estate; second, if he got a life estate only who took title upon his death?

The general rule, especially under modern decisions both in this state and elsewhere, is that in construing deeds as well as wills the intention of the grantor is the cardinal consideration, and that intention is to be gathered from examination of the instrument as a whole. 18 C.J. 252; 26 C.J.S., Deeds, § 83, p. 324 et seq.; 16 Am.Jur. 529, 531, 532, 570; Palmer Oil & Gas Co. v. Blodgett, 60 Kan. 712, 57 P. 947; Vawter v. Newman, 74 Kan. 290, 86 P. 135; Kendall v. Parsons, 81 Kan. 192, 105 P. 25; Dyson v. Bux, 84 Kan. 596, 114 P. 1092; Abbott v. Perkins, 90 Kan. 45, 49, 132 P. 1177. And many cases hold that where the words are not entirely clear surrounding circumstances may be considered in determining intention. 18 C.J. 260, 261; 26 C.J.S., Deeds, § 92, p. 344; 16 Am.Jur. 532; Vawter v. Newman, supra; Abbott v. Perkins, supra, 90 Kan. at page 49, 132 P. 1177.

In line with the general rule our statute relating to conveyance of real estate (G.S. 1935, 67-202) provides that the grantor's entire title and interest will pass unless it clearly appears that he intended a lesser estate to pass.

Although the grantor, in the instant deed, used the words 'heirs and assigns' in the granting and in the habendum clauses we have no hesitancy in saying that by the paragraph of limitation (italics, supra) he clearly indicated his intention that his son John Bell Bennett was to get a life estate only. Taking the paragraph as a whole we think it is not susceptible of any other interpretation. When the father provided that the son could not sell the property during his lifetime and that upon his death it should go to his children, and that this limitation was imposed as 'part of the consideration of this deed' he indicated beyond all question a life-estate only in the son. It is true that he did not use the specific words 'life-estate' or 'for and during his natural life,' but no particular words are necessary to creation of a...