Hinton v. Hinton

• Decision Date: 20 January 1969
• Parties: George O. HINTON v. Harvey Albert HINTON et al.
• Court: Virginia Supreme Court

Page 386

165 S.E.2d 386

209 Va. 544

George O. HINTON v. Harvey Albert HINTON et al.

Supreme Court of Appeals of Virginia.

Jan. 20, 1969.

M. Ray Johnston, Lively (Clarke & Johnston, Lively, on brief), for appellant.

Roland M. Dameron, Jr., Heathsville, for appellees.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON CARRICO, GORDON and HARRISON, JJ.

GORDON, Justice.

We have the case of a deed that reads like the deed in Shelley's Case. But, unfortunately, the rule in Shelley's Case cannot help us solve the riddle of this deed, because that rule has been abolished by Virginia Code § 55--14.

The deed in question, executed by E. J. Marsh and Mary Marsh on January 28, 1927, conveyed property known as Bunker Hill Farm to their daughter Emma M Hinton during her lifetime. The granting clause of the deed then provided:

'and then to the natural heirs of her body forever--to her as long as she may live, then at her death to the natural heirs of her body, if any of her children of her body may then be living; and if no natural heir or heirs of her body may survive her, then at her death to the nearest heirs of her body or blood relatives * * *.'

The habendum clause provided:

'to have and to hold and defend unto her, the aforesaid Mrs. Emma M. Hinton, party of the Second Part, her natural lifetime, then to the children of her body, if any survive her, if no child of her body survives her, then and in that case at her death to her nearest blood relatives, as above, forever.'

The life tenant Emma M. Hinton died on August 6, 1966, survived by one child, George O. Hinton, and by a deceased son's children, Harvey A. Hinton and J. Warner Hinton, III.

George O. Hinton brought this suit seeking a construction of the deed. By a final decree, the trial court held that the deed conveyed a one-half remainder interest to the child, George O. Hinton, and a one-quarter remainder interest each to the grandchildren Harvey A. Hinton and J. Warner Hinton, III. George O. Hinton appeals from that decree, asserting that the court should have declared him the sole owner of the property.

Counsel for George O. Hinton contends that the granting and habendum clauses, when read together, evidence the grantors' intent to vest the remainder solely in the life tenant's surviving child or children ('children of her body'). Counsel for the appellees, Harvey A. Hinton and J. Warner Hinton, III, contends that the granting clause evidences the grantors' intent to vest the remainder in the life tenant's descendants ('heirs of her body'); and that under the rule of Mills v. Embrey, 166 Va. 383, 186 S.E. 47 (1936), the granting clause must prevail if the granting and habendum clauses are irreconcilable.

The granting clause of the deed vests the remainder in the 'natural heirs of her body, if any of her Children of her body may then be living', or, 'if no Natural heir or heirs of her body may survive her, then at her death to the Nearest heirs of her body or blood relatives'. Proper interpretation of the granting clause depends upon the meanings of the italicized terms.

The accepted meaning of 'heirs of her body' is Descendants. Jenkins v. Hogg, 139 Va. 682, 124 S.E. 392 (1924). But we should give the accepted meaning to that term only if that meaning makes the granting and habendum clauses sensible as a whole. ' (I)n the effort to give the words their due force, we must not lose sight of other parts of the instrument, but each part must be construed with reference to the whole, so as to make it harmonious and sensible as a whole.' Willis v. Kalmbach, 109 Va. 475, 482, 64 S.E. 342, 345, 21 L.R.A., N.S., 1009 (1909).

Counsel for the grandchildren-appellees would have us give the meaning Descendants to the terms 'natural heirs of her body' and 'nearest heirs of her body', and the same meaning to the term 'children of her body'. But if we give those terms that...