Hassell v. Sims

• Decision Date: 13 June 1940
• Parties: HASSELL et al. v. SIMS et al.
• Court: Tennessee Supreme Court

141 S.W.2d 472

176 Tenn. 318

HASSELL et al. v. SIMS et al.

Supreme Court of Tennessee.

June 13, 1940

Appeal from Chancery Court, Decatur County; Tom C. Rye, Chancellor.

Suit in equity by T. F. Hassell, administrator, and others against J J. Sims and others. Decree for complainants, and defendants appeal.

Affirmed.

R. R Haggard, of Waynesboro, for complainants.

W. H Fisher, of Memphis, and Greer & Greer, of Dyersburg, for defendants.

McKINNEY Justice.

The sole question for decision is whether the grandchildren of J. J. Sims take any interest in a 404-acre tract of land in Decatur County which he conveyed by warranty deed on July 25, 1906. At the time of said conveyance J. J. Sims and his wife Dora had several living children but no grandchildren. Since then other children have been born to them, and at present they have a number of grandchildren, both the children and grandchildren being parties to this suit. J. J. Sims and his wife Dora are still living. The chancellor decreed that the attempt in said deed to create an estate in the grandchildren was void and that they acquired no interest in this tract of land.

This deed, omitting boundaries of the land, is as follows:

"I J. J. Sims of Decatur County and State of Tennessee, For the love and affection I have for my wife, Dora, and her children do hereby convey to them the following tract of land Known and described as follows: (setting description out) And I warrant the title against all persons whomsoever. Covenant of seized possession and Special warranty, I covenant that I am seized and possessed of said land and have a right to convey it and I warrant the title against all persons claiming under me.

"Now it is known especially the terms that wife Dora may hold her interest in the above deed after my demise so long as she remains a widow if she intermarries with any other person then her right ceases to her interest in said land, and in regard to the children that is now born or may hereafter be born to me and my wife Dora they are to have equal right in said land during their lives, then the title is vested in their children that is to say the title of the above conveyance of said land is vested in my Grand Children."

No question is made as to the execution and delivery of this deed.

Counsel for complainants insist that there is a repugnancy between the granting and the habendum clauses, the result being that the former controls; so that the wife takes a life estate and their children living at the date of the deed take a vested remainder which opens up to let in after-born children. To this view we are unable to assent. Under the decisions of this court the rule is firmly established that when the conveying clause in a deed fails to state, limit or define the estate granted, it may be limited or defined in the habendum clause, the latter determining the estate granted, and only adds new grantees by way of remainder. Simpson v. Simpson, 160 Tenn. 645, 647, 28 S.W.2d 349; Teague v. Sowder, 121 Tenn. 132, 166, 114 S.W. 484; Beecher v. Hicks, 7 Lea 207, 75 Tenn. 207.

We are further of the opinion that this contention by counsel for complainants conflicts with the purpose and intention of the grantor. While the deed is somewhat inartificially drawn and expressed in language not entirely clear from ambiguity, we have no real difficulty in comprehending the purpose and intention of the testator, namely, that his wife was to take a life estate in the property, followed by a like estate in their children, with the inheritance or contingent remainders in the grandchildren.

In Blackburn v. Blackburn, 109 Tenn. 674, 677, 73 S.W. 109, 110, grantor conveyed a tract of land of 1,063 acres to his daughter, Mary McMillion Blackburn, and her children. The instrument further provided that if the daughter was survived by her husband that 400 acres of the tract was to be set apart to him "to hold and use and occupy during his lifetime, and at his death to go to the said children, bodily heirs of said Mary McMillion Blackburn."

It will be observed that the grantor created two life estates, with remainder in Mrs. Blackburn's children. At the date of the deed Mrs. Blackburn had four living children, one of whom, a daughter, married Alpheus Truett, and had born to her of this marriage a child named Edward Truett. Mrs. Truett afterwards died during the lifetime of her mother, leaving surviving this child. Subsequent to the date and delivery of the deed there was born to Mrs. Blackburn five other children. Thereafter she died leaving surviving her husband and, in all, eight children and the grandchild, Edward Truett. With respect to the several interests taken by the grantees, the court said: "But if the deed, when taken altogether, discloses a purpose upon the grantor's part that all the children of the mother, without regard to the time of their birth, shall become beneficiaries of the property conveyed, then to effectuate this purpose the mother will be converted into a tenant for life, and the children into remaindermen, the remainders vesting in those living at the date of the instrument, and the estate opening upon the subsequent birth of children so as to embrace them; or else the mother will be held to be trustee for herself and her then living as well as her after-born children. And a slight indication will induce the courts to adopt the construction of the deed which will effectuate the intention of the grantor. Moore v. Simmons, 2 Head [545], 546; Beecher v. Hicks, 7 Lea 207."

Upon these authorities it is clear that Mrs. Dora Sims took a life estate, followed by a like estate in her children, just as Mr. Blackburn took a life estate in the 400-acre tract of land upon the death of his wife under the deed referred to above.

Since there were no living grandchildren in whom the fee could vest when J. J. Sims executed the deed before us, it follows that the grandchildren who were subsequently born became contingent remaindermen. Buntin v. Plummer, 164 Tenn. 87, 91, 46 S.W.2d 60; Lumsden v. Payne, 120 Tenn. 407, 114 S.W.483, 21 L.R.A.,N.S., 605; Ryan v. Monaghan, 99 Tenn. 338, 42 S.W. 144; Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525, 38 L.R.A. 679; Williams v. Williams, 3 Baxt. 55, 62 Tenn. 55; Clopton v. Clopton, 2 Heisk. 31, 49 Tenn. 31. Until the contingency happens, that is, the death of grantor's children survived by children, the fee remains in the grantor, or in his heirs in case of his death. Clopton v. Clopton, supra; Bigley v. Watson, supra; Ryan v. Monaghan, supra.

In 21 C.J. 993, it is said: "Some authorities hold that where a contingent remainder of the inheritance is limited by a conveyance operating at common law, the estate in remainder immediately passes out of the grantor, is in abeyance (sometimes expressed as in nubibus or in gremiolegis), where it awaits the contingency, and if that results favorably vests in the remainderman, but if the remainder fails to vest at or before the determination of the particular estate the grantor or his heirs may re-enter. The logical and more reasonable theory, however, is that in such a case the inheritance remains in the grantor or his heirs or in the heirs of the testor, until the contingency happens to take it out of them." (Citing authorities.)

Counsel for complainants make the further insistence that in so far as the grantor undertook to create an estate in his unborn grandchildren that the deed is void as violative of the rule against perpetuities.

In Eager v. McCoy, 143 Tenn. 693, 702, 228 S.W. 709, 711, it is said: "The rule against perpetuities has been considered in several of our cases, and it is, as announced therein, that executory limitations, whether of real or of personal estate, in order to be valid, must vest in interest, if at all, within a life or lives in being and 21 years and a fraction thereafter, or the term of gestation in cases of posthumous birth."

Counsel for defendants insist that...