Hancock v. Butler

• Decision Date: 01 January 1858
• Citation: 21 Tex. 804
• Parties: JOSIAH HANCOCK AND OTHERS v. W. B. BUTLER.
• Court: Texas Supreme Court

21 Tex. 804

JOSIAH HANCOCK AND OTHERS

v.W. B. BUTLER.

Supreme Court of Texas.

1858.

Every part of an instrument should be harmonized and given effect to, if it can be done. If that cannot be done, and it is found that the deed contains inherent conflict of intentions, then the main intention, the object of the grant being considered, shall prevail.

If a deed, or its parts, are equally capable of two constructions, one consistent with an intention, on the part of the grantor to do that which it was lawful for him to do, and one consistent with an intention to do that which it was unlawful for him to do, the former will be adopted.

The rule that courts will confer the greatest estate on the grantee, that the terms of the grant will permit, is subordinate to the rule, “that every part of the deed should be harmonized and given effect to, if it can be done.”

In a deed to a person, for the term of his natural life, and at his death to his lawful issue forever, the words lawful issue thus employed, are words of purchase, and not of limitation. 22 Tex. 544.

Appeal from Smith. Tried below before Hon. J. H. Reagan.

The facts are to be found in the opinion.

Selman & Hubbard, for appellants.

I. The donor will not be presumed to do or intend to do an unlawful act.

II. The intention shall govern in the construction of deeds and wills.

III. The technical as well as the natural meaning of the word “issue” is,

1st. A word of “purchase” within itself, especially so when used in deeds, as contradistinguished from wills.

2d. It will be construed to be a word of purchase in all instruments devising or conveying property, if from the content and the terms used, the intention of the grantor or devisor may be so inferred.

And in support of these propositions, filed an elaborate brief containing numerous authorities to sustain them.

S. G. Smith, for appellee, cited the following authorities: 2 Black. Com. p. 272; Cruise, Dig. (Greenl. ed.) tit. 32, ch. 40, sec. 8; Id. tit. 16, ch. 7, sec. 1 and 2; Fearne, p. 221, note; 2 Black. Com. p. 170; Cruise, Dig. tit. 16, ch. 1, sec. 19 and note; 1 Doug. 264; 3 Aik. 135 (quoted in Cruise, vol. 2, p. 214); Bailey v. Morris, 4 Ves. 788 (cited by appellant's counsel in Leigh v. Norbury); Wild's case, 6 Coke, 176; vol. 3, p. 288.

ROBERTS, J.

Appellants claim the land in controversy as the children of Josiah Hancock, deceased, under the deed of their grandfather, John Hancock, which reads as follows:

“SOUTH CAROLINA, Edgefield District.

Know all men by these presents, that I, John Hancock, of the state and district aforesaid, for and in consideration of the love and natural affection I bear unto and for my beloved son, Josiah Hancock, and for his better support and future convenience, have this day given the following property to the said Josiah Hancock, in the following manner, viz.: I give unto said Josiah Hancock, two negroes, viz.: Jerry, a boy, dark complexion, about eighteen years old, and one girl, Ann, dark complexion, about seven years of age, and for the term of his natural life, and at his death, to his lawful issue forever.”

(Then follows a full warranty “unto said Josiah Hancock and his lawful issue.”)

Under this deed, appellants claim as purchasers from John Hancock; and the right so to do depends upon whether or not Josiah Hancock took a life estate only in the slaves--and that is the question in this case.

What did the grantor intend by the terms of his deed? Was that intention lawful? These are the leading inquiries to be made. The governing rule is, that every part of the instrument should be harmonized and given effect to, if it can be done. If that cannot be done, and it is found that the deed contains inherent conflict of intentions, then the main intention, the object of the grant being considered, shall prevail. In either event, the result arrived at must be a lawful one. Rules in Shep. Touch. 83, 84 and 85. In arriving at the intention of the grantor, what he had a right to do, and what he did not have a right to do, should be taken into consideration; for it is to be presumed that he knew his rights, unless we find something in the deed which leads to a different conclusion. He had a right to give his son the property absolutely, either with or without reference to his issue. He had a right to give to his son, Josiah, a life estate only, and connect with it a gift of the absolute property, to take effect at the time of Josiah's death, to persons then in being, answering the description of Josiah's issue.

He had no right to create a perpetuity, by which he would tie up the property from alienation longer than a life or lives in being, and twenty-one years.

He had no right to entail the property, by giving it to Josiah and his issue, to take in a line of succession after one another, contrary to the general laws of descent and distribution.

He had no right (terms are used applicable to real estate, so as to convey the idea) to reduce the estate, conferred on Josiah, to a life estate, if in the same deed he made the issue of Josiah derive an estate in fee or fee tail from and through Josiah, as his heirs, by descent.

Now, if this deed, or its parts, are equally capable of two constructions-- one, consistent with his having intended to do that which it was lawful for him to do--and one, which is consistent with his having intended to do that which it was unlawful for him to do--the former will be adopted.

The part of the deed, which expressly indicates the interest which Josiah Hancock is intended to take, is plain, and not even capable of being made dubious: “I give unto Josiah Hancock (the slaves) for the term of his natural life” If the deed went no further, or if the full property in the slaves had been given, after that, by the same or another deed, over to the issue of some one else, there could be no doubt that Josiah only took a life estate.

It is contended by counsel for appellee, in an elaborate argument, that this express intention is overborne, and a greater interest than a life estate was conferred on Josiah Hancock, by the mode in which the interest in the property is bestowed on the issue, viz.: “at his death to his issue forever;” that, by the use of these words in the deed, he has done (whatever he might have intended) some one or all of the three things above designated,which he had no right to do; and that, therefore, the only legal result, which can flow from the deed so as to give it effect at all, is to cast upon Josiah Hancock the absolute property in the slaves.

To effect this, the rule in Shelley's case is mainly relied on. That is stated to be, “when a person takes an estate of freehold, legally, or equitably, under a deed, will, or other writing, and in the same instrument, there is a limitation, by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons, to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” 4 Kent, 215. This result would follow, although the deed might express that the first taker should have a life estate only. It is founded on the use of the technical words, “heirs,” or “heirs of his body,” in the deed or the will.

The rule in Shelley's case is said to be a rule of law. It is really an organic rule, entering into the creation of the estate of inheritance. The whole must embrace all its parts. The existence of the whole being established, or taken for granted, it cannot be true that a part of the whole is wanting; that is, if it takes four sides to complete a mansion, its completion being admitted, by a law in physics, it cannot be true that the mansion has three sides only. In that sense, it is a rule of law.

Without attempting a severely accurate definition, but for purposes of illustration, it may be said, that the law does not permit a grantor to create an inheritable estate, divide it up into sections of certain or uncertain periods, and fasten a section thereof upon the first taker, with the reduced dimensions of a life estate only. That is in violation of the rule by which an inheritable estate is created. For if a life estate only be clearly granted to the first taker (as Josiah Hancock in this case), from all the terms of the deed taken together, then his heirs cannot inherit the estate from him, and it cannot be truly said that he takes an inheritable estate. The fact, on the other hand, of its being an estate descending to his heirs in succession, is inconsistent with the fact of the first taker's having a life estate only, and, therefore, if it appears, from the deed, that it is by descent from the first taker, that certain persons, as his heirs, must derive their title, then that forces back on him (that from which alone such a result could flow) an inheritable estate with all its attributes; although other parts of the deed might indicate an effort to confer on the first taker a life estate only.

We are brought to the point then, do the terms of the deed “and, at his death, to his lawful issue forever,” standing in the connection they do, give the property to persons, in being at the time of Josiah's death, answering the description of Josiah's issue, they taking as purchasers? or do they give the property to “the heirs of his body,” as a class of persons to take in succession from generation to generation, which would be by inheritance?

The word issue being the leading feature of this sentence, upon which all the rest concentrates, it is important to fix some definite meaning to it. It may mean descendants, living at the death of the first taker, or descendants through all future time so long as there are any; it may mean “heirs of the body,” or it may mean children. The first point to be settled is into whose hands will the property first go, after the death of Josiah Hancock, and in what...