Haight v. Hall

• Decision Date: 25 April 1889
• Parties: HAIGHT ET AL. v. HALL ET AL.
• Court: Wisconsin Supreme Court

74 Wis. 152

42 N.W. 109

HAIGHT ET AL.

v.HALL ET AL.

Supreme Court of Wisconsin.

April 25, 1889.

Appeal from circuit court, Winnebago county.

Ejectment by James A. Haight and others, children and sole heirs at law of Selina B. Haight, deceased, against Sophia L. Hall and others. A nonsuit was directed, and plaintiffs appeal.Charles W. Felker, for appellants.

Weisbrod, Harshaw & Nevitt, for respondents.

COLE, C. J.

In 1865, Mrs. Ann M. Paige conveyed to her daughter, Selina B. Haight, by a warranty deed, the premises in controversy. The grantee was then the wife of Augustus Haight. The deed was in the usual form, except the habendum clause contains this language: “To have and to hold the said granted premises, with all the privileges and appurtenances to the same belonging, to her, the said Selina B. Haight, to her sole and separate use, free from the interference or control of her said husband, or any husband, and her heirs and assigns, to her and their only proper use and benefit forever.” The sole question for consideration is, did Augustus Haight become tenant by the curtesy in the premises on the death of his wife, the grantee in the deed? On the part of the appellants it is insisted that, upon the death of their mother, they took the premises by descent, discharged from any estate by the curtesy, and that this is the only reasonable construction which can be given the clause of the deed above quoted. We are inclined to adopt this view of the case as correct. It is a cardinal rule in the construction of instruments that such a construction, if possible, should be adopted which will give some effect to all the words of the instrument, and render all parts operative. Now, if the tenancy by the curtesy was not cut off by the clause in the conveyance, then it is obvious that, on the death of Mrs. Haight intestate, her husband took that estate; and the language in the deed, that the grantee shall hold the premises “to her sole and separate use, free from the interference or control of her husband, her heirs and assigns, to her and their only proper use and benefit forever,” has no force whatever given to it; for, under the statute as it then and now exists, real estate conveyed to the wife during coverture became her sole and separate property, which she could hold to her sole and separate use in the same manner and with the like effect as if she were unmarried. Chapter 95, Rev. St. 1858. It is difficult for us to conceive of any other object or purpose the grantor had in restricting the grant to the grantee, and her heirs and assigns, to her and their only proper use and benefit forever, free from all interference or control of the husband, unless the intention was to exclude the estate by the curtesy; for how could the husband take that estate if...