Hopkins v. Hopkins

• Decision Date: 03 November 1909
• Citation: 122 S.W. 15
• Parties: HOPKINS et al. v. HOPKINS.
• Court: Texas Supreme Court

122 S.W. 15

HOPKINS et al. v. HOPKINS.

Supreme Court of Texas.

November 3, 1909.

Error from Court of Civil Appeals of Second Supreme Judicial District.

Action by Samuel B. Hopkins against Carrie A. Hopkins, guardian of Carrie B. Hopkins, a minor, and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (114 S. W. 673), and error is brought in behalf of said minor. Reversed and dismissed.

D. H. Morrow and Lewis & Phillips, for plaintiffs in error. Davis & Thomason, for defendant in error.

WILLIAMS, J.

This action was brought by defendant in error to obtain a construction of a deed and an adjudication that it vested in him a fee-simple title to the land conveyed by it. A copy of the deed in question is attached to the petition and is from S. B. Hopkins and his wife, Mary B. Hopkins, to plaintiff, their son. It states that it is made in consideration of love and affection, and the parts material to the decision are as follows, in their order: (1) Granting clause, "unto our said son, Samuel Bunch Hopkins, and to his heirs, upon the terms and conditions hereinafter stated." (2) Habendum clause, "to our said son and his heirs." (3) Special warranty of title to "said premises unto our said son, Samuel Bunch Hopkins, and his heirs." (4) The following: "The intention of this conveyance is to vest sufficient title in our said son, Samuel Bunch Hopkins, to the above-described property, so that he can, during his life, use, occupy and enjoy it, and receive therefrom all the benefits as completely as though he had a fee-simple title, and at his death his children are to have a fee-simple title. Should our son, Samuel Bunch Hopkins, die without issue, then the title to said property is to revert in us as completely as though this conveyance had never been made, if we are living; if we are not living, then according to the descent and distribution laws of Texas such of our heirs are to receive and have the same title as he gets, and whoever inherits said property hereafter shall have a fee-simple title." We have, for convenience in reference, numbered the clauses. It appears from the petition that both the grantors are dead, leaving three children, plaintiff and two sisters. The father, however, survived the mother and married again and left a widow and a daughter, Carrie B. Hopkins, the plaintiff in error. This widow and the two full-sisters and the half-sister of plaintiff are the defendants in this action. The defense is made in behalf of the minor half-sister, and was presented only by demurrer to the petition, which was overruled, and judgment was rendered for plaintiff in accordance with his prayer. The appeal from this judgment and, upon its affirmance, this writ of error, were prosecuted in behalf of the minor.

The question argued is whether the plaintiff took a fee-simple title, or only an estate for life. It is the contention of the plaintiff below, sustained by the Court of Civil Appeals, that the deed vested in him the fee by force of the rule in Shelley's Case, which is, briefly, thus stated: "If an estate for life, or any other particular estate of freehold, be given to one, with remainder to his heirs, the first taker shall be held to have the fee, and the heirs will take by descent, and not by purchase." Counsel for defendant (plaintiff in error) contend that the rule has no application, for the reason that, if we try to apply it to the granting clause, the habendum clause, and the warranty, without regard to the words, "upon the terms and conditions hereinafter stated," we find, not a life estate, but a fee-simple estate granted to the first taker, while, if we regard the words just quoted and the last provision in the deed to which those words evidently refer, we find a life estate granted to the first taker and a remainder, not to heirs, but to children. The several parts of the deed are not to be considered without reference to each other, but are to be construed together and the effect of one upon the other so determined; and a question upon which the decision must depend does thus arise as to the application of the rule in Shelley's Case.

The grant in the first clause to Samuel Bunch Hopkins and to his heirs, if that were all, unquestionably would create in him a fee simple; but we cannot stop at those words, because the clause itself does not stop with them. The added words, "upon the terms and conditions hereinafter stated," are a part of the granting clause itself and of equal dignity with the other language of that clause. Until we look to other parts of the deed to see the "terms and conditions," we cannot rest upon the assumption that the estate granted is such as the other words, by themselves, would convey, for, as we shall see, it was competent for the grantors, notwithstanding the use of words proper to the creation of a fee simple, to show by other provisions in the deed that those words were used in a restrictive, but legitimate, sense, in which they would create a...