Maddy v. Maddy

• Citation: 105 S.E. 803
• Decision Date: 01 February 1921
• Docket Number: (No. 4129.)
• Parties: MADDY. v. MADDY et al.
• Court: West Virginia Supreme Court

105 S.E. 803

MADDY.
v.
MADDY et al.

(No. 4129.)

Supreme Court of Appeals of West Virginia.

Feb. 1, 1921.

(Syllabus by the Court.)[105 S.E. 804]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Child— Children.]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Heirs of the Body.]

Appeal from Circuit Court, Summers County.

Suit by J. E. Maddy against B. F. Maddy and others in partition. From a decree dismissing the bill, plaintiff appeals. Affirmed.

E. C. Eagle and R. F. Dunlap, both of Hinton, for appellant.

LYNCH, J. 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 plaintiff's 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 undivided 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 6, 1920, and on February 21st plaintiff instituted this suit, which defendants B. F. and 6. 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 party of the second part three certain tracts of land [describing them]. * * * To have and to hold the real estate aforesaid, with its appurtenances, unto the said Cynthia A. Maddy and her children, the heirs of her body, forever. And the said party of the first part doth hereby covenant with the party 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, 67 S. E. 1119; Weekley v. Weekley, 75 W. Va. 280, 83 S. E. 1005. 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 irreconcilable that the intention of the grantor cannot be de-

[105 S.E. 805]

termined with reasonable certainty from a construction of the instrument as a whole. Temple v. Wright, 94 Va. 338, 26 S. E. 844; Culpeper Nat. Bank v. Wrenn, 115 Va. 55, 78 S. E. 620; 18 C. J. tit "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, c. 71 (sec. 3746), 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, c. 71 [sec. 3747] Code) is raised to a fee simple. Allen v. South Penn Oil Co., 72 W. Va. 155, 77 S. E. 905. Under such construction there could be no repugnancy between the grant and habendum. On the other hand, if the habendum had 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, 61 W. Va. 262, 56 S. E. 473, 12 L. R. A. (N. S.) 283, 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 word or phrase in question was made conditional upon the context of the instrument. In the former the construction given to "children" was held appropriate "unless a different intent plainly appear in the will"; in the latter, the court approved the technical construction of the words "heirs of her body, " where "there are no other words in the deed, and no circumstances appearing...