Maddy v. Maddy.

• Citation: 87 W.Va. 581
• Decision Date: 01 February 1921
• Docket Number: No. 4129.,4129.
• Parties: J. E. Maddy v. B. P. Maddy et al.
• Court: Supreme Court of West Virginia

87 W.Va. 581

J. E. Maddy

v.B. P. Maddy et al.

No. 4129.

Supreme Court of Appeals of West Virginia.

Submitted January 25, 1921.

Decided February 1, 1921.

1. Deeds Deed Must be Construed as a Whole. Giving Effect to Clear Intention of Parties.

In construing a deed, will, or other written instrument, it is the duty of the court to construe it as a whole, taking and considering all the parts together, and giving effect to the intention of the parties wherever that is reasonably clear and free from doubt, unless to do so will violate some principle of law inconsistent therewith, (p. 583).

2. Same Inconsistent Granting and Habendum Clauses Must be t'cad Together.

Where the provisions of the granting and habendum clauses of a deed disclose a possible inconsistency or repugnancy between them, creating doubt as to the nature of the estate sought, to lie conveyed, they must be read together in the light of all the provisions of the instrument, and, if reasonably possible, harmonized, in order to achieve the true intent of the grantor, (p. 584).

3. SamkWhere Granting and Habendum Clauses Inconsistent as to /''state. Entire Instrument Must be Construed.

Where the premises of a deed disclose but one grantee, Cynthia A. Maddy, and the granting clause clearly purports to convey the property to her alone, but the habendum adds "to have and to hold the real estate aforesaid * * * unto the said Cynthia A. Maddy and her children, the heirs of her body, forever," creating doubt whether the deed conveys an estate for life, in tail, or in fee simple to the designated grantee alone or to her and her children jointly, all the provisions of the intrument should be read and construed together, in order to determine what estate the grantee took, (p. 585).

4. Same "Children" in its Broader Meaning May Connote Entire Line of Descendants.

Though generally the word "children," as used in a deed or will, refers to the immediate descendants of a designated person, it may under some circumstances bear a broader meaning and connote the entire line of descendants. In order to determine the sense in which it was used by the grantor or testator, it is necessary to look to its context, considered in the light of all the provisions of the instrument, (p. 586).

Maddy v. Maddy

[Feb. 1921

5. Same Phrase "Heirs of the Body" Held to Mean Children, Creating an Estate in Fee Tail Raised by Statute to Fee Simple.

Where the habendum clause of a deed limits a conveyance to a designated person "and her children, the heirs of her body, forever," and the instrument considered as a whole discloses an intent on the part of the grantor to convey a fee simple interest to the former, the only designated grantee, the phrase, "heirs of her body," will be deemed to indicate the true sense in which the term "children" was used; thus creating in the grantee an estate in fee tail, which by the statute is raised to a fee simple, (p. 586).

6. Evidence Complete Deed Cannot be Modified as to Intent by Subsequent Affidavit of Scrivener.

A deed, complete in itself and susceptible of construction, cannot be varied or modified in legal meaning by an affidavit of the scrivener many years after the execution of the instrument, purporting to show the alleged intention of the grantor with respect to the conveyance, and the scrivener's effort to make the deed conform to such intent, (p. 587).

Appeal from Circuit Court, Summers County. Suit by J. E. Maddy against B. F. Madcly and others in partition. From a decree dismissing the bill, plaintiff appeals.

Affirmed.

E. C. Eagle and R. F. Dunlap, for appellant.

Lynch, Judge:

Appellant J. E. Maddy, plaintiff below, seeks reversal of a decree of the circuit court of Summers County dismissing his bill praying partition of three tracts of land in which he claims a joint undivided interest. The basis of his claim is a deed executed by his father, E. J. Maddy, November 20, 1893, the granting clause of which purports to convey the tracts in question to Cynthia A. Maddy, the wife of the grantor and plaintiffs mother. Plaintiff contends, however, that the habendum clause clearly discloses an intention on the part of the grantor to convey the property, not to the wife alone, but to her and their five children jointly, thereby giving to each an undivied one-sixth interest in the tracts conveyed. The children were all living at the date of the execution of the deed. By deed of April 4, 1918, Cynthia A. Maddy conveyed the three tracts to defendants B. F. and G. C. Maddy, two of the children, plaintiff's brothers, in consideration of a promise by them to "keep, maintain and support" her in a comfortable manner during the remainder of her life. She died January G, 1920, and on February 21st plaintiff instituted this suit, which defendants P. F. and G. C. Maddy resist upon the ground that the deed of 1893 vested in their mother the entire fee interest in and to the property referred to, instead of an undivided one-sixth interest as plaintiff contends, and that their mother's interest in fee was conveyed to them by the deed of 1918.

The material portion of the deed of 1893, construction of which is sought, follows: "This deed made this 20th day of November, 1893, between E. J. Maddy of the county of Summers, West Virginia, of the first part, and Cynthia A. Maddy of the same place, of the second part; Witnesseth: That the said party of the first part, for and in consideration of two hundred dollars, heretofore paid for the real estate hereinafter conveyed, and for other good and valuable considerations, doth grant unto the parly of the second part three certain tracts of land (describing them). * * To have and to hold the real estate aforesaid with its appurtenances unto ike said Cynthia A Maddy and her children, the heirs of tier body, forever. And the said party of the first part doth hereby covenant with the parly of the second part that they (he) will warrant generally the property hereby conveyed." (Italics ours.)

Two questions immediately present themselves: First, is the habendum clause repugnant to the granting portion of the deed? Second, in case of such repugnancy which shall prevail? In the construction of wills, deeds or other written instruments the prime consideration always is ascertainment of the intention of the party or parties executing them, and to effectuate that purpose the court or other construing body generally looks to the whole instrument and examines all of its provisions in order to determine therefrom the true intent sought to be effected. Irvin v. Stover, 67 W. Va. 356; Weeldey v. Weelcley, 75 W. Va. 280. There is no occasion for resort to the common law rule that the habendum must yield to the grant in case of inconsistency between them, unless the repugnancy is so irreconcil- Maddy v. Maddy

[Feb. 1921

able that the intention of the grantor cannot be determined with reasonable certainty from a construction of the instrument as a whole. Temple v. Wright, 94 Va. 338; Culpeper Nat. Bank v. Wrenn, 115 Va. 55; 18 C. J. title, "Deeds," § 329.

In this case, therefore, the grant and habendum must be read and considered together. The former standing alone is clear in 'its designation of Cynthia A. Maddy as the sole grantee, and under section 8, ch. 71, Code, conveys to her the entire fee interest of the grantor. No other name appears either in the premises or in the grant itself. It is only when the habendum is reached that a different designation is used. Had the word' "children" been omitted and only the phrase, "heirs of her body," used, clearly the latter would, be construed, in the absence of other words indicating a purpose to limit its usual and technical meaning, as a phrase of limitation, not of purchase, creating an estate in fee tail, which by the statute (section 9, eh. 71, Code) is raised to a fee simple. Allen v. South Penn Oil Co., 72 W. Va. 155. Under such construction there could be no repugnancy between the grant and habendum. On the other hand, if the habendum, bad. contained only the words, "unto the said. Cynthia A. Maddy and her children," a different construction might have been necessary, for in Wills v. Foltz, 01 W. Va. 262, a devise unto a woman, and her children, there being children living at the date of the testator's death, was held to confer upon the woman and her children a joint estate in equal portions, instead of a fee in the former alone; the court saying in point 2 of the syllabus: "The word children' in a devise is a word of purchase, not of limitation, unless a different intent plainly appear in the will."

Here, however, there are present both elements the word, "children," held. in. Wills V. Foltz, cited, to be a word of purchase, and the phrase, "heirs of her body," held in Allen v. South Penn Oil Co., cited, to be a phrase of limitation. But in each of the cases cited the interpretation given to the Avord or phrase in question Avas made conditional upon the context of the instrument. In the former, the construction given to "children" Avas held appropriate "unless...