McCord v. Ransom

• Citation: 207 S.W.2d 581,185 Tenn. 677
• Parties: McCORD et al. v. RANSOM et al.
• Decision Date: 16 January 1948
• Court: Tennessee Supreme Court

207 S.W.2d 581

185 Tenn. 677

McCORD et al. v. RANSOM et al.

Supreme Court of Tennessee.

January 16, 1948

Appeal from Chancery Court, Bedford County; R. E. Lee, Chancellor.

Suit by Bessilee Reagor McCord and another against Ben F. Ransom Jr., and another for construction of deed. From an adverse decree, complainants appeal.

Affirmed.

George S. Buckner, of Murfreesboro, for appellants.

G. S Ridley and Ben R. Kerr, both of Murfresboro, for appellees.

PREWITT Justice.

The bill filed in this cause sought a construction of a deed executed by B. F. Ransom and wife in 1888 conveying certain real estate in Bedford County. The bill was filed by Mrs Bessilee Reagor McCord and Mrs. Ruth Reagor Kipping against Ben F. Ransom, Jr., and Mrs. Pearl Kerr seeking to have their rights determined in said real estate.

B. F Ransom had four children, namely: Mrs. S. A. E. Binford, one of the grantees in said deed (now deceased), Mrs. S.E. Whitworth, Ben F. Ransom, Jr., and Mrs. Pearl Kerr. Mrs. Whitworth died a number of years ago, leaving surviving one child, Mrs. Nora Whitworth Reagor. Mrs. Reagor died in 1940, leaving as her only heirs at law three children, namely: Mrs. Bessilee Reagor McCord, Mrs. Ruth Reagor Kipping, and one son, Clyde Reagor, who has since died without issue.

The pertinent parts of the deed to be construed are as follows:

'For and in consideration of the natural love and affection I have for my daughter S. A. E. Binford, and the further consideration of one dollar to me in hand paid the receipt of which is hereby acknowledged I. B. F. Ransom, do hereby sell and convey to S. A. E. Binford all the right, title, claim and interest I have in and to the following described tract or parcel of land lying and being in the 5th Civil District of Bedford County Tennessee, containing by estimation 130 35/160 acres be the same more or less, bounded as follows, * * *.

'To have and to hold to the said S. A. E. Binford for and during her natural life and after her death to her son Frank Binford, and any other child or children, that may hereafter be born to her, the said S. A. E. Binford and in the event she, the said S. A. E. Binford dies without child or children, or her said child or children should die without children then & in that event this land is to be equally divided between my then living children, and the children of such as may be dead, my said grandchild or children, if such there be, taking the share, their parent, would be entitled to if living.'

We are of opinion that Mrs. Binford did not take a fee-simple title but took only a life estate. From the deed as a whole, it appears that the grantor intended for his daughter to have a life estate only, and his intention should prevail.

In Lockett v. Thomas, 179 Tenn. 240, 243, 165 S.W.2d 375, 376, this Court said: 'The technical rules of the common law as to the division of deeds into formal parts have long since been disregarded in this state, and the rule is that all parts of the deed shall be examined together for the purpose of ascertaining the intention. In Pryor v. Richardson, 162 Tenn. 346, 37 S.W.2d 114, this court held that in the construction of deeds the intention of the grantor is ascertained by consideration of the entire instrument of conveyance and no preference is given the premises over the habendum, and that the estate granted in the premises of the deed may be enlarged or lessened in the habendum. Many of our cases are cited in the opinion in support of these holdings.'

The above rule is the last expression of this Court, and we feel bound thereby.

It is contended by the complainants that if Mrs. Binford took a life estate under said deed her son and only child, Frank Binford, took a remainder in fee simple; and that upon the death of Frank Binford, who predeceased his mother (she never having had any other children), said remainder interest was inherited by Mrs. Binford from her son for the reason that the remaining provisions contained in the habendum clause evidence a purpose on the part of the grantor to tie up the property described in the deed in perpetuity to the fourth generation; and, therefore, the limitation over being in violation of the rule against perpetuity, fails.

The defendants contend that the grantor did not intend to create a perpetuity, and that by a proper construction of the habendum clause the rule against perpetuities is not violated and the limitation over is good.

From the language of the habendum clause, the grantor gave the remainder interest in said land to Frank Binford, and any other child or children who might be born to Mrs. S. A. E. Binford. He gave nothing to the children of Frank Binford, but provided that in the event of Mrs. Binford's death without child or children surviving her, or in the event of the death of her child or children without children surviving, 'then & in that event this land is to be equally divided between my then living children.' The question is: Did the grantor mean the death of Frank Binford without children in the lifetime of his mother, or the death of Frank Binford at any time?

In Templeton v. Stong, 182 Tenn. 591, 596, 188 S.W.2d 560, 562, Mr. Justice Gailor, speaking for the Court, said:

'When the grantor used the words, 'and in the event of the death of Jessie Templeton,' grantor meant death of his daughter during his wife's life tenancy under the following rule:

"That where an absolute estate is followed by the words, 'In case he should die without issue,' or words of similar import, it is a settled principle of interpretation that they will be understood as referring to death without issue in the lifetime of the testator, if the gift is immediate, or during the continuance of the life estate if it is not; and if the devisee survives the testator or the continuance of the intervening estate, his interest becomes absolute and indefeasible.' Carr v. Carr, 8 Tenn.Civ.App. 410. (Italics ours.)'

In Carr v. Carr, supra, it was held that where a testator devised lands to A for life, with remainder to R, with proviso that if R should die without children living at his death, then to certain nephews and nieces, the title of R became absolute upon his living longer than the life tenant. The Court said at page 410 of 8 Tenn.Civ.App: 'There is still another rule equally well established, which is in line with the rule announced in the above cases, and...