Gibbs v. Barkley

• Decision Date: 21 June 1922
• Docket Number: (No. 328-3680.)
• Citation: 242 S.W. 462
• Parties: GIBBS v. BARKLEY et al.
• Court: Texas Supreme Court

242 S.W. 462

GIBBS v.BARKLEY et al.

(No. 328-3680.)

Commission of Appeals of Texas, Section A.

June 21, 1922.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by R. W. Barkley and others against Mrs. Sallie E. Gibbs.Judgment for plaintiffs(233 S. W. 134), and defendant brings error.Reversed and remanded.

Dean & Humphrey, of Huntsville, for plaintiff in error.

R. J. Randolph, of Madisonville, for defendants in error.

SPENCER, P. J.

Defendants in error sued plaintiff in error in trespass to try title to recover the 216-acre tract of land described in the pleadings.Pleasant W. Kittrell is the common source of title.Defendants in error are claiming the land, as heirs of Mary E. P. Barkley, a daughter of P. W. Kittrell.Plaintiff in error asserts ownership in virtue of mesne conveyances from the common source of title down to and into herself.Included in her chain of title is a deed from Mary E. P. Barkley and D. M. D. Barkley, conveying the 1,500-acre tract described in the conveyance from Kittrell to Mary E. P. Barkley and her children, hereinafter set out, of which the land in controversy is a part.She also pleaded the statute of limitations of five and ten years.The controversy involves a construction of the following instrument:

"That Pleasant W. Kittrell of the county of Pollock and state of Texas, being desirous to give and secure certain property to my daughter Mary E. P. Barkley and her children, the wife and children of Dave M. D. Barkley, all now of Leon county in the state of Texas, as before; and in consideration of the sum of $10.00 to me paid, receipt is hereby acknowledged; and for the natural affection which I bear my said daughter and children and for other considerations hereunto moving, have this day given, granted, and conveyed and by this instrument of writing do give, grant, and convey unto my said daughter Mary E. P. Barkley and her children my following named property, to wit: (Here follows a description of the property.) * * *

"To have and to hold all of the above and aforesaid property, land, and slacks to my daughter Mary E. P. Barkley for her sole use, behoof, and benefit during her natural life, and at her death to the issue of her body forever.And I do hereby constitute and appoint my son-in-law D. M. D. Barkley, the husband of my daughter Mary E. P. Barkley, guardian or trustee of the said within mentioned property and persons to use said property and its proceeds for the sole use and benefit of his wife Mary E. P. Barkley and the issue of her body."

Defendants in error contend that the estate created by the instrument was a contingent remainder, vesting upon the death of Mary E. P. Barkley in such of the issue of her body as survived her.Plaintiff in error insists that the instrument created a vested remainder in the children of Mary E. P. Barkley who were in existence at the date of the deed, and that upon the death of any of these children, prior to the death of their parents, the estate so conveyed by the instrument passed to the parents of the deceased children, and that such interest in turn passed directly by the deed executed by the parents or by estoppel because of the warranty of title contained in the deed.

The ultimate purpose in construing a deed is to ascertain the intention of the grantor.When this intention is ascertained, that construction which carries the intention into effect, when such intention is lawful, governs and controls.The intention, however, is not to be gotten from an isolated clause or paragraph, but gathered from a fair construction of the entire instrument.Each clause or paragraph must be construed with reference to every other paragraph, and the effect of one paragraph upon the other determined.Hopkins v. Hopkins, 103 Tex. 15, 122 S. W. 15.

The granting clause, or premises of the instrument, now being construed, would if standing alone vest in Mary E. P. Barkley and the children designated a fee-simple title to the property mentioned in it; but, when construed with reference to and in connection with the habendum clause, it is quite apparent that the estate intended to be created in favor of Mrs. Barkley was one for life.

What estate was intended to be passed to her children?And what children were intended to be included? are the important issues to be determined.Was it the intention of the grantor to create an estate in the children living at the date of the execution of the deed, or was it the intention of the grantor that the remainder was to pass to those children surviving Mary E. P. Barkley.

The use of the words "all now of Leon county in the state of Texas" are very significant in ascertaining the grantor's intent.The word "now" denotes present time.It indicates the historical present.It signifies the separation or the setting apart of an indicated date — the time of speaking or the date of the instrument in this instance — from that of any past or future time or date, as a point of reference.It is epochal in the sense employed by the grantor in the present instance, in that it fixes and determines the casting of the descent of this property.No date, other than the one thus fixed, should be used as a reckoning point in determining the casting of descent, unless from the context of the whole instrument it appears that it was the grantor's intention so to do.

That it was not the intention of the grantor to cast descent upon after-born children is made certain by the language used in the clause wherein he states that the consideration, among other things, is the natural affection which he bears to his daughter and her children.The expression of natural affection implies a limitation to those children in existence at the date of the instrument.

This precise question was before the court of last resort of Virginia, and that court held that an expressed consideration of natural love and affection for the grantees in a deed should be construed, if the contents warrant, to apply to a definite class of persons for whom the grantor would naturally cherish a real affection, rather than to a more or less uncertain and remote class.Halsey v. Fulton et al., 119 Va. 571, 89 S. E. 912;18 C. J. 275, par. 238.

The words "and at her death to the issue of her body," found in the habendum clause of the instrument, are relied upon as evidencing an intention that only those children of Mary E. P. Barkley surviving her, regardless of the dates of their birth are to take the estate.To so construe the clause is to revoke and annual the grants made to the children living at the date of the instrument.A clause will not be revoked, if it is capable of being reconciled with the repugnant clause; which can be done in this instance and which will be done to effectuate the grantor's intention.Moore v. City of Waco, 85 Tex. 206, 20 S. W. 61.

The use of the term "children" in the granting clause is narrowed, as has been pointed out, to include only those living at the date of instrument.The words "issue of her body" can be reconciled with the granting clause and the intention of the testator carried out by giving to them a secondary or restricted meaning.That such a construction is not only permissible, but proper, is the concensus of opinion of all the adjudicated cases.Robeson v. Cochran, 255 Ill. 355, 99 N. E. 649;Vale Royal Mfg. Co. v. Santee River Cypress Lbr. Co., 84 S. C. 81, 65 S. E. 955;18 C. J. 274, par. 237.

The interest granted to the children by the deed was dependent upon the happening of no event or contingency, but vested as of the date of the instrument.It was a fixed interest, to take effect in possession after the termination of the estate of the life tenant.In the event of the death of any of these children before the death of the life tenant, the interest of such child or children did not lapse in favor of the surviving children, but descended to their heirs.Bufford v. Holliman, 10 Tex. 560, 60 Am. Dec. 223.

The concluding clause of the instrument did not vest title in D. M. D. Barkley as trustee.No words of conveyance are contained therein.No power of sale is conferred thereby.The word "proceeds" is the only word in the clause that even suggests any such power, and it is not a word of any fixed or definite meaning, but one of loose and varying significance.It is synonymous with "product,""yield,""income,""receipts," and "return."It has been defined as the amount proceeding or accruing from some possession or transaction.In the light of the provisions of the deed, and the lack of any power, express or implied, in the trustee to sell the property, it was undoubtedly the intention of the grantor to employ the word in the sense of income from the property which the trustee had power to manage and control.It cannot be construed as an implied power of the trustee to sell, for such power of alienation would be destructive not only of the trust imposed by the instrument, but wholly inconsistent with the major purpose of the conveyance — the giving of a life estate to Mrs. Barkley and the vesting of title in the remaindermen.The instrument merely confers upon him the power to manage the property and to use the proceeds derived therefrom for the use and benefit of Mrs. Barkley and her children.The only interest which passed by the deed from Mary E. P. Barkley and D. M. D. Barkley, to their grantees, was the life estate of Mrs. Barkley and such interest as they may have inherited from their children having an interest who may have predeceased them.

The record does not show with any degree of certainty what interest, if any, they inherited from their children, nor does it show a definite interest in the defendants in error.

R. W. Barkley, one of the plaintiffs in the trial court, in testifying enumerated seven children, including himself, who were born to Mary E. P. Barkley and D. M. D. Barkley.He testified that there were several others...