Fullagar v. Stockdale

• Citation: 138 Mich. 363,101 N.W. 576
• Court: Supreme Court of Michigan
• Decision Date: 07 December 1904
• Parties: FULLAGAR et al. v. STOCKDALE et al.

101 N.W. 576

138 Mich. 363

FULLAGAR et al. v. STOCKDALE et al.

Supreme Court of Michigan

December 7, 1904

Appeal from Circuit Court, Allegan County, in Chancery; Philip Padgham, Judge.

Action by Sarah Fullagar and another against David Stockdale, as administrator of the estate of William Gibbs, deceased, and others, to quiet title to real estate. From a decree in favor of complainants, defendants appeal. Reversed.

C. R. Wilkes, for appellant David Stockdale.

Fidus E. Fish, for appellees.

CARPENTER J.

February 21, 1867, John Pierce and Olive Pierce, of the first part conveyed to 'William Gibbs, Harriet Gibbs, and the heirs of said Harriet Gibbs,' of the second part, and to the 'heirs and assigns' of the said party of the second part, the land in controversy in this suit. Said William Gibbs and Harriet Gibbs, of the second part, were husband and wife. Said Harriet Gibbs was the daughter of the parties of the first part. She was at the time of this conveyance the mother of two infant children by a former husband, namely Sarah Yates (now Fullagar, the first-named complainant) and Frank Yates. After the conveyance was made there was born to William and Harriet a son, namely, defendant John F. Gibbs. In 1878, by quitclaim deed, Frank Yates conveyed his interest in said land to said William Gibbs. William Gibbs died in 1888, leaving a will, which was afterwards probated, by which he devised a life estate in said property to his widow and the fee to his son, said John F. Gibbs. Harriet Gibbs continued to live on said property with her daughter Sarah until 1902, when she died intestate. After such death said Frank Yates, by quitclaim deed, transferred his interest in said property to his sister, the first-named complainant. This bill was then filed to remove the cloud cast upon complainants' title by the deed from Frank Yates to William Gibbs and by the probate of the latter's will.

Complainants contend that by the conveyance in question William and Harriet Gibbs acquired the entire title of the land as tenants by the entirety, and that this title vested in Harriet as the survivor, and that, therefore William Gibbs acquired no interest by the conveyance from Frank Yates. The first two named defendants contend that the deed conveyed a one-third interest to William and Harriet Gibbs as tenants by the entirety, and a one-third interest to each of the latter's children, namely, Sarah and Frank Yates, and that, therefore, the deed from Frank Yates to William Gibbs transferred an undivided one-third interest in the property. The court below granted complainants relief, and the defendants just referred to appeal to this court.

The question presented by this controversy depends, as conceded, upon a proper construction of the deed. For the purpose of enabling the court to properly construe such deed, complainants proved in the lower court that when it was executed there was living a child of said grantee, William Gibbs, and that 'the object of making the deed was that it would cut off this child and insure the property to Harriet Gibbs' two children.' The grantors 'wanted to cut off William Gibbs' daughter by his first marriage. * * * They wanted Frank Yates and Sarah Yates to have that forty acres after Harriet and William Gibbs were dead.' The witness who gave this testimony (and it was all given by one witness) says that he 'don't recall there was any talk'; that, 'if Mrs. Gibbs should have any other children, they [the grantors] wanted them cut off.' This evidence warrants the conclusion that the grantors intended to convey an estate to William and Harriet Gibbs until the death of the survivor, and to convey the remainder to the children of said Harriet. If we give effect to this testimony--and I think to do so we would violate the principle which prevents the legal effect of an instrument being changed by parol testimony--(see Morrill v. Morrill [Mich.] 101 N.W. 209), it would not support complainants' contention that the deed should be construed to vest the entire title in William and Harriet Gibbs as tenants by the entirety; for that construction would give the children of Harriet nothing, and in the event of William surviving his wife it might all pass to the child whom the grantors desired to exclude. It may also be said that, if the conveyance had been so drawn as to carry out this claimed intention of the grantees, it would have immediately vested in said Frank Yates an undivided interest amounting to at least one-third. While Frank Yates could not have the possession of this property until the death of William and Harriet, he nevertheless (see section 8795, Comp. Laws 1897) would have had a vested remainder, which he could convey, and which, therefore, was conveyed by him to his stepfather, William Gibbs.

We reach the same conclusion by a proper construction of the deed; that is, by ascertaining its meaning by considering, as we certainly can, the language, the surrounding circumstances, and the situation of the parties. See French v. Carhart, 1 N. Y. 96; Coleman v. Beach, 97 N.Y. 545; Seymour v. Bowles (Ill.) 50 N.E. 122. The grantees named in the deed are 'William Gibbs, Harriet Gibbs, and the heirs of said Harriet Gibbs.' The entire title is transferred to these grantees and to their 'heirs and assigns.' Complainant asks us to say that, according to this language, nothing was transferred to the heirs of Harriet Gibbs. She asks us to construe this conveyance as if they were not mentioned as grantees therein. It is true that there was a rule of the common law, called the 'Rule in Shelley's Case,' by which, if an estate was granted to one for his life, and by the same instrument the remainder was granted to his heirs generally, or to the heirs of his body, the word 'heirs' was a word of limitation, and not of purchase. Fraser v. Chene, 2 Mich. 90. That is, the word 'heirs' simply indicated the character of the estate transferred to the grantee. Under that rule the heirs of the grantee obtained nothing in such a conveyance. If this rule ever could have been used in construing the deed in...