Kennedy v. Rutter

• Decision Date: 02 May 1939
• Docket Number: No. 364.,364.
• Citation: 6 A.2d 17
• Parties: KENNEDY et al. v. RUTTER et al.
• Court: Vermont Supreme Court

6 A.2d 17

KENNEDY et al.

v. RUTTER et al.

No. 364.

Supreme Court of Vermont. Chittenden.

May 2, 1939.

Appeal in Chancery; Walter H. Cleary, Chancellor.

Suit by James E. Kennedy, administrator of the estate of Susan S. Dwyer, deceased, and others, against Harvey T. Rutter, administrator of the estate of Edward Dwyer, deceased, and others, to have the ownership of the westerly half of certain premises located in the City of Burlington decreed to plaintiffs. From a decree sustaining defendants' demurrer to the bill, plaintiffs appeal.

Decree affirmed and cause remanded.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, and STURTEVANT, JJ., and CUSHING, Superior Judge.

Charles H. Darling and J. A. McNamara, both of Burlington, for plaintiffs.

M. G. Leary, Guy M. Page, and M. G. Leary, Jr., all of Burlington, for defendants.

STURTEVANT, Justice.

This case is here on plaintiff's appeal from the decree of the chancellor sustaining defendants' demurrer to the bill. Plaintiffs seek to have the ownership of the westerly half of certain premises located in the city of Burlington decreed to them.

The facts material to the determination of the questions before us as appear from the bill are as follows:

On September 15, 1880, Edward Dwyer acquired by purchase from one H. S. Kimball and wife certain lands with a building thereon now known as the Dwyer block located on the northerly side of Cherry Street in the city of Burlington. Certain furniture in said building at that time also passed to him as a part of his purchase. Edward Dwyer married Susan S. Dwyer April 21, 1896. He deceased February 21, 1919, and on June 19, 1919, Harvey T. Rutter was appointed administrator of his estate. Susan S. Dwyer deceased August 21, 1933, and James E. Kennedy was duly appointed administrator of her estate.

Said Edward and Susan occupied said premises as their homestead from the time of their marriage to the time of his death in 1919, and Susan continued to live on said premises until the time of her death in 1933. There are five children of said Edward Dwyer by a former marriage now living and there are several grandchildren who are sons or daughters of deceased children of said Edward, and these children and grandchildren are all and the only heirs-at-law of the said Edward. The plaintiffs other than said Kennedy are brothers and sisters of the said Susan S. Dwyer.

On January 1, 1912, said Edward and Susan S. Dwyer conveyed said premises by quitclaim deed to one Albert G. Whittemore, then a practicing attorney in Burlington. On the same day said Whittemore reconveyed said premises by quitclaim deed, the material parts of said deed being in words and figures as follows: "Quitclaim Deed.

"Know All Men by These Presents— That I, A. G. Whittemore, * * * have remised, released and forever quit-claimed, and do hereby remise, release and forever quit-claim unto the said Edward Dwyer and Susan Dwyer, their heirs and assigns all right and title which I, the said A. G. Whittemore, have in and to the following described piece or parcel of land situated in the City of Burlington, in said Chittenden county, viz." [Then follows description of property].

"The purpose and intent of this conveyance is not to make the grantees strictly joint tenants but to give and grant unto the said Susan Dwyer in case she survives her husband, said Edward Dwyer, the sole use, income and control of said land, premises and property after the death of her husband, Edward Dwyer, for and during the remainder of her natural life, with remainder at her decease to her husband, Edward Dwyer, and his heirs, if he survives his said wife, and if he does not survive his said wife, then the lawful heirs of said Edward Dwyer to them and their heirs forever.

"To have and to hold all my right and title in and to the said remised, released and quit-claimed premises with the appurtenances thereof to the said Edward Dwyer and Susan Dwyer, in the manner above stated and their heirs and assigns, to them and their own proper use, benefit and behoof forever. [Conclusion in usual form]."

On September 25, 1913, said Edward and Susan made, executed and delivered to said Whittemore a second quitclaim deed of the aforesaid premises and on the same day said Whittemore made, executed and delivered to said Dwyers a quitclaim deed describing said premises, the material parts of said last mentioned deed being as follows:

"Quit Claim Deed.

"Know All Men by These Presents: That I, Albert G. Whittemore, * * * have remised, released and forever quit-claimed, and do hereby remise, release and forever quit-claim unto the said Edward Dwyer and wife, Susan S. Dwyer, their heirs and assigns, all right and title which I, the said Albert G. Whittemore, have in and to the following described piece or parcel of land situated in the City of Burlington, in said Chittenden County, viz.

"The use and occupation during their natural lives or the natural life of either of them, of the entire land and premises situated on the north side of Cherry Street and known as the 'Dwyer block property' and being the same land and premises conveyed to me by said Edward and Susan S. Dwyer by quit-claim deed of even date herewith, to which deed and its record when made, reference is made in aid of this description, subject to the following conditions, to wit: Upon the death of said Edward Dwyer, I hereby convey unto the said Susan S. Dwyer if she is then living, the title in fee and absolute ownership of the westerly one-half of said entire land and premises, the division line to be midway between the easterly and westerly lines thereof and also the use during her natural life of the easterly one-half of said entire premises but if said Susan S. Dwyer does not survive said Edward Dwyer, I then convey said westerly one-half of said entire premises upon the decease of said Edward Dwyer in fee forever unto her sisters, Mary Sullivan and Margaret Sullivan of Williston, Vt., in equal shares, the same to be their and their heirs forever, subject to the use of the same by the said Edward Dwyer during his natural life, and upon the death of said Susan S. Dwyer, I hereby convey unto the said Edward Dwyer and his heirs forever the title in fee to and absolute ownership of said easterly half of said entire premises and the use during his natural life of the westerly half of said premises. This conveyance is made at the request and with the consent of the said Edward and Susan S. Dwyer for the purpose of dividing the property of said Edward between them.

"To have and to hold all my right and title in and to the said remised, released and quit-claimed premises with the appurtenances thereof to the said Edward Dwyer and Susan S. Dwyer, their heirs and assigns to them and their own proper use, benefit and behoof forever. [Conclusion in usual form]."

The plaintiffs claim that by force of the last above mentioned deed, dated September 5, 1913, they own and have a vested title in and to the westerly half of said premises and a homestead and homestead rights in the easterly half thereof. Defendants contend that under the facts set forth in the bill, all of said premises became vested in title and right of possession in the children and children of deceased children of said Edward Dwyer at the decease of Susan S. Dwyer, said Edward having died several years before that time. Defendants base this claim upon the deed above mentioned which is dated January 1, 1912.

The answer to the claims so made by the parties depends upon the construction of said deed from Whittemore, dated January 1, 1912, and we first address our attention to this instrument, having in mind the following principles relative to construction of deeds, namely: "Our master rule of construction of deeds is that the intention of the parties, when ascertainable from the entire instrument, prevails over technical terms or their formal arrangements." Vermont Kaolin Corporation v. Lyons, 101 Vt. 367, 376, 143 A. 639, 642: Johnson et al. v. Barden et al., 86 Vt. 19, 83 A. 721, Ann.Cas.1915A, 1243; DeGoosh v. Baldwin & Russ, 85 Vt. 312, 82 A. 182; Robinson v. Missisquoi Railroad Co., 59 Vt. 426, 10 A. 522; Collins v. Lavelle, 44 Vt. 230, 231; Flagg v. Eames, 40 Vt. 16, 94 Am.Dec. 363; Mills v. Catlin, 22 Vt. 98; State v. Trask, 6 Vt. 355, 27 Am.Dec. 554.

"Then, too, while the language of a written instrument governs in determining its effect and operation, in construing such language, the situation of the parties, the subject-matter, and the object and purposes sought to be accomplished may be considered." Vermont Kaolin Corporation v. Lyons, supra, 101 Vt. 376, 143 A. 642; City of Burlington ex rel. v. Mayor of City of Burlington, 98 Vt. 388, 398, 127 A. 892; Crosby v. Montgomery, 38 Vt. 238; Walker v. Pierce, 38 Vt. 94; Robinson v. Missisquoi Railroad Co., supra.

While plaintiffs do not seriously dispute the principle that if the grantor in a deed clearly expresses his intent and same is a legal one and docs not violate the law, such intent must control, they insist, however, that in the deed in question the grantor's intent is not clear and that the clause next following the description hereinafter referred to as the purpose and intent clause is repugnant to the granting clause. They contend that therefore the granting clause alone should be given force and that we should disregard the very clause which purports to set forth the "purpose and intent" of the conveyance. We cannot agree with this contention. In the granting clause appear the words "* * * do hereby remise, release and forever quitclaim unto the said Edward Dwyer and Susan Dwyer, their heirs and assigns, all right and title * * *." Then follows a description of the property and this is immediately followed by the purpose and intent clause. While it is true as stated in the case of Bennett et al. v. Bennett et al., 93 Vt. 316, 107 A. 304, 305, "* * * the habendum in the deed, when repugnant to the...