"This suit started as a suit for the partition of a valuable farm in Henry District, Hanover County, known as 'The Grove.' By deed of May 2, 1903, R. R. Horne and wife, reserving a life estate therein for themselves, gave remainderstherein for life to their sons George R. Home and C. R. Home with remainders after their deaths 'to their lawful children.' The deed also provided 'I wish my son George R. Home to be given my dwelling house and seventy-five acres of land and no more, running from the main road towards Chickahominy Swamp.'
"This deed, although witnessed by two witnesses and duly acknowledged before W. C. Newman, a Justice of the Peace for Hanover County, was not admitted to record until September 15, 1909, after the death of the grantor. Who had possession of the deed in the meantime is unknown. However, the testator in his will, probated in the Clerk's office of Henrico County on June 9, 1909, and dated July 30, 1908, speaks of this deed in such a manner as to indicate that it had been delivered prior to the making of the will, and it is the opinion of the court that it conclusively appears from the will that the deed in question was delivered prior to July 30, 1908, the day on which the will was executed.
"It may also be noted that the grantor R. R. Home, who had been the Treasurer of Hanover County for a number of years, was the owner of a large number of valuable tracts of land in Henry District, Hanover County, and that, by the deed of May 2, 1903, he divided his various farms among his several children. The most valuable of these tracts was 'The Grove, ' and it is the clause of that deed which disposed of 'The Grove' which is the subject of this suit. This clause of the deed will be quoted later in this opinion.
"C. R. Home died July 15, 1930, leaving four children, the plaintiffs in this suit. It appears that they had contracted to sell that part of 'The Grove' in which their father had been given a life estate, and the title examiner had raised some question as to whether the property had been properly partitioned between C. R. Home in his lifetime and George R. Home, who was then alive. This suit was accordingly instituted, in which the plaintiffs prayed for a partition of that part of 'The Grove' taken by them under the aforesaid deed on the death of their father from that part in which George R. Home had a life estate.
"George R. Home and all of the heirs of R. R. Horne, the grantor in aforesaid deed, other than the plaintiff were made parties defendant. George R. Horne, who was living at the time the suit was in
stituted, died, without issue, on August 19, 1941.
"By decree of December 4, 1941, this clause was referred to a Commissioner to ascertain who were the heirs of R. R. Horne, who were the necessary parties to his suit, and what were the boundaries fixed by the life tenants as between themselves in 'The Grove.'
"On December 24, 1941, the Commissioner filed his report in which he set forth the names of all of the heirs of R. R. Horne, deceased (the same parties to whom the property would pass under the residuary clause in the will of R. R. Horne), and reported that they were all properly before the court. He also reported that George R. Horne and C. R. Home had in their lifetime established a line of partition between the house tract given George R. Horne for his life and the balance of said farm given by said deed to C. R. Horne for his life, and returned a survey showing said line of partition thus established.
"By a decree of December 26, 1941, the two tracts as thus divided by the life tenants were approved and partitioned.
"This left for determination the issue raised by the answers of the defendants, which contention is denied by the plaintiffs.
"The controversy before the court involves the construction of the following provision in the aforesaid deed of May 2, 1903, from R. R. Horne and wife to Annie C. Starke et al.: 'To George R. Horne and C. R. Horne, the remainder, after the life estate of the said parties of the first part (which life estate is hereby expressly reserved) of the farm which the said parties of the first part now reside, called "The Grove, " containing two hundred and sixty acres, more or less, adjoining the lands of C. R. Horne and the Mechanicsville farm, bounded partly by the county road which leads from Mechanicsville to Ellerson, and partly by the Chickahominy Swamp, for their lives then to their lawful children. I wish my son Geo. R. Horne to be given my dwelling house and seventy-five acres of land and no more, running from the main road towards Chickahominy Swamp.'
"It appears from the evidence that shortly after the taking effect of the life estates given to George R. Horne and C. R. Horne, they adopted a hedge row and fence as the partition line between their respective estates, which line was thereafter accepted as the line between the places given them for life by the aforesaid deed. By this line of division George R. Horne received 76.25 acres and C. R. Horne 194.6 acres. This line of partition was later adopted and approved as the line of partition between the respective parts of 'The Grove, ' divided in accordance with the directions contained in said deed, by decree entered in this cause December 26, 1941.
"On behalf of the children of C. R. Horne, it is contended that the proper construction of the language of the deed creating the remainders in fee in 'The Grove' is that the remainders were given to a class composed of the children of both, if both have children, or if only one has children of the children of such one; and George R. Horne having died without issue the whole estate has passed to the children of his brother C. R. Horne, also deceased.
"On the other hand, the heirs of R. R. Horne, the grantor in the deed, excepting the children of C. R. Horne, contend that the deed created life estates in separate and distinct parts of 'The Grove, ' or, at the least, life interests in common, and that the remainders after their deaths must be construed to be distributive so as to give the share of each to his children if he has any; and, George R. Horne having died without issue, that part of the estate given him for his life reverted to the estate of the original grantor.
"It is apparent that the remainders were given to a class. But the question to be decided is were they given to one class or to two classes. If they were given to one class, then the children of C. R. Horne would be entitled not only to the remainder in that part of 'The Grove' given their Father, but to the remainder in the estate given George R. Horne. If, on the other hand, two classes in remainder were intended by the words used in the deed, the children of C. R. Horne cannot take as pur
chasers the remainder in the estate given by the deed to George R. Horne.
"The law is settled that where a gift is to a class and it fails as to one of the class because of death, revocation, or any other cause, the survivors of the class will take. Saunders v. Saunders, Adm'r, 1909, 109 Va. 191, 195, 63 S.E. 410, and authorities there cited.
"It is equally as well settled that where a legacy, devise or grant is to several, whatever may be their relations to each other, or however the statute of distributions or of descents might operate upon such relations, equality is the rule, unless the testator or grantor has established a different one. Crow v. Crow, 1 Leigh 74, 77 (18), 28 Va. 74, 77 (18).
"As was said in the recent case of Johnson v. Kelly, 1938, 171 Va. 153, 155, 156, 198 S.E. 474, 475: 'This rule of construction has been recognized and applied many times by this court. See Hoxton v. Griffith, 18 Grat. 574, 577, 59 Va. 574, 577; Walker v. Webster, 95 Va. 377, 381, 28 S.E. 570; Whittle v. Whittle's Ex'rs, 108 Va. 22, 25, 60 S.E. 748; Driskill v. Carwile, 145 Va. 116, 123, 133 S.E. 773; Murchison v. Wallace, 156 Va. 728, 739, 159 S.E. 106; Ward v. Ottley, 166 Va. 639, 641, 186 S.E. 25.
" 'But it is equally well settled that the presumption of a per capita distribution is not a strong one and is easily overborne. It "will yield to a very faint glimpse of a contrary intention in the context" (Hoxton v. Griffith, supra), or a contrary intention deduced from a study of the will as a whole (Murchison v. Wallace, supra; Ward v. Ottley, supra).'
"The same rules applicable to the construction of wills are equally applicable to the construction of deeds. Lindsey v. Eckels, 1901, 99 Va. 668, 671, 40 S.E. 23, 24. As was there said: 'Whether construing a deed or a will, the object is to discover the intention, which is to be gathered in every case from the general purpose and scope of the instrument, in the light of the surrounding circumstances. Stace v. Bum-gardner, 89 Va. [418] 421, 16 S.E. 252; Pom. Eq. Jur. (2d Ed.) see § 1012.
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