Reuter v. Reuter
| Decision Date | 13 February 1928 |
| Docket Number | 25296 |
| Citation | 218 N.W. 86,116 Neb. 428 |
| Parties | ROSINA REUTER, APPELLANT, v. JOHN REUTER ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Pawnee county: JOHN B. RAPER JUDGE. Affirmed.
AFFIRMED.
Dort & Witte, for appellant.
A. E Henry, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
This is a suit in equity for the construction of a deed to a quarter section of land in Pawnee county and to quiet in plaintiff the fee simple title thereto. The following excerpt from the deed contains the provisions in controversy:
The deed contained covenants of warranty and was dated November 2, 1915. At that time grantee, Rosina Reuter, was the mother of children now living. She is plaintiff, and pleads that the deed was duly executed, delivered and recorded; that the restricting clauses were inserted for the sole purpose of securing to grantor, while living, the annual payments of $ 100 each; that grantee paid each installment at maturity; that grantor died August 23, 1922; that the wife of the grantor departed this life April 26, 1900; that the following provision of the deed is void:
"Upon the death of the said Rosina Reuter the said land shall descend to, and the title thereto shall vest in, her children and their descendants as by right of representation."
Grantee and her husband, John Reuter, have now unmarried children, named, respectively, Frank Reuter, Leonard Reuter, and Gladys Reuter. They have also a married daughter, Eulalia A. Reuter Burgett, wife of Oscar Burgett. The Burgetts named have a daughter Marie Burgett, a minor, granddaughter of plaintiff, the grantee. Gladys Reuter, daughter of plaintiff, is also a minor. John Reuter, husband of plaintiff, their children and the grandchild, Marie Burgett, are defendants.
The suit is defended only by the minors, Gladys Reuter and Marie Burgett, who are represented by A. E. Henry, their guardian ad litem. The answer amounts to a plea that the deed to plaintiff conveyed to her a life estate only, with remainder over to a class consisting of her surviving children and of any surviving children of her deceased children at the time of her death.
Upon a trial of the issues the district court dismissed the suit. Plaintiff appealed.
The propositions of law upon which plaintiff relies for a reversal and for a decree in her favor are that the deed as a whole shows it was the intention of grantor to convey to grantee a fee simple title; that the fee was conveyed to plaintiff in clear and decisive terms; that after such a grant the estate thus conveyed could not be cut down to a life estate; that the restrictions were inserted to secure the stipulated payments; that the clause relating to the vesting of title in grantee's children and their descendants is inoperative under the rule in Shelley's Case and the statute relating to perpetuities.
The positions thus taken by plaintiff do not seem to be tenable. A Nebraska statute provides that courts in construing a conveyance of real estate shall carry into effect the true intent of the parties, "so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law." Comp. St. 1922, sec. 5594. The statutory rule applies to deeds. Moran v. Moran, 101 Neb. 386, 163 N.W. 315. It was held by a divided court in later cases that the rule in Shelley's Case is in force, and that it conforms to public policy and does not conflict with the statutory rule. Myers v. Myers, 109 Neb. 230, 190 N.W. 491; Yates v. Yates, 104 Neb. 678, 178 N.W. 262.
According to the legislative test, it is the duty of the court to give to each word and sentence in the conveyance such significance as will carry into effect the true intent of the parties thereto. Rupert v. Penner, 35 Neb. 587, 53 N.W. 598; Albin v. Parmele, 70 Neb. 740, 98 N.W. 29; Benedict v. Minton, 83 Neb. 782, 120 N.W. 429; Moran v. Moran, 101 Neb. 386, 163 N.W. 315. Where granting and restricting clauses properly construed are not inconsistent or illegal, resort to the habendum, in connection with all other provisions, is permissible for the purpose of ascertaining the character and extent of the estate granted to the first taker. This is shown by the opinions in the cases cited. In Loosing v. Loosing, 85 Neb. 66, 74, 122 N.W. 707, it was said:
"The later clause, or clauses, may be read in connection with the first one for the purpose of advising the court whether it actually did transfer the fee, and if it does not in itself clearly and unequivocally do so, and by a comparison thereof with the remaining parts of the instrument the court is convinced that the testator did not in fact intend to vest the greater title in the first taker, the...
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