Smith v. Clinkscales

• Decision Date: 12 August 1915
• Docket Number: (No. 9156.)
• Citation: 102 S.C. 227,85 S.E. 1064
• Parties: SMITH. v. CLINKSCALES et al.
• Court: South Carolina Supreme Court

85 S.E. 1064

102 S.C. 227

SMITH.

v.CLINKSCALES et al.

(No. 9156.)

Supreme Court of South Carolina.

Aug. 12, 1915.

Gary, C. J., and Fraser, J., dissenting.

Appeal from Common Pleas Circuit Court of Abbeville County; Frank B. Gary, Judge.

Action by Fannie Sullivan Smith against J. F. Clinkscales, individually and as executor of John T. Clinkscales, deceased, and Mrs. Ellen Sherard Thomson. Judgment for defendant Clinkscales, and plaintiff and Mrs. Thomson appeal. Reversed.

McCullough, Martin & Blythe, of Greenville, and W. P. Greene, of Abbeville, for appellants.

M. P. De Bruhl, of Abbeville, Cothran. Dean & Cothran, of Greenville, and J. Frank Clinkscales, of McCormick, for respondent.

HYDRICK, J. Omitting the description of the land, and the reservation to the grantor, the deed to be construed reads as follows:

"Know all men by these presents that I, Albert J. Clinkscales, of the county of Abbeville, of the state aforesaid, for and in consideration of the natural love and affection I have and bear for my two sons, James F. Clinkscales and John T. Clinkscales of the said state and county, have granted, bargained, sold and released unto the ——James F. Clinkscales and John T. Clinkscales, all that plantation or tract of land in said state, and county of Abbeville, containing twenty-four hundred and twenty-six acres, more or less, in the following way and manner, and with the limitations and reservations below expressed, namely, the western half or moiety of the said tract of land to James F. Clinkscales, and the eastern moiety or half to John T. Clinkscales, between whose parts or moieties a division line will be run hereafter through the said land by the said Albert J. Clinkscales, dividing the said tract, and when so divided, the said moieties and part will be held in severalty by the said James F. Clinkscales and John T. Clinkscales, respectively, with this limitation, if either the said James F. Clinkscales or John T. Clinkscales should die leaving no issue living at the time of his death, the brothers and sisters of the said James F. Clinkscales and John T. Clinkscales, who may die without issue aforesaid shall take have and held such lands, to them, the said brothers and sisters, their heirs and assigns as tenants in common in fee simple, the said Albert J. Clinkscales reserving, etc. (here follows the reserva tion to himself). Together with all and singular the rights, members, hereditaments and appurtenances to the premises belonging or in anywise incident or appertaining. To have and to hold all and singular the said premises and the moieties when division is made as aforesaid to the said James F. Clinkscales and John T. Clinkscales, respectively, and their heirs and assigns respectively, subject to the limitation over to their brothers and sisters as aforesaid and reservation of interest and use to Albeit J. Clinkscales as aforesaid. And I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend all and singular the said premises to the said James F. Clinkscales and John T. Clinkscales, granted and released to them as aforesaid and to their heirs and assigns against me the said Albert J. Clinkscales, my heirs and assigns, and against every person whomsoever lawfully claiming or to claim the same or any part thereof."

At the date of this deed (1876), the grantor had four children—the two sons named therein, and two daughters, Ellen and Elizabeth, both of whom predeceased him, intestate, each leaving one child as her only heir at law. Ellen left the plaintiff, Mrs. Smith, and Elizabeth, the defendant, Mrs. Thomson. One of the sons, John, died, in 1912, without issue, leaving a will wherein he devised his moiety of the land to his brother James. The grantor died, in 1895, and the plaintiff and defendants, James and Mrs. Thomson, are his only heirs at law. James is the only surviving child of the grantor.

The circuit court held that, under the deed, John took a fee simple absolute in his moiety, and therefore his devise to James was good; and, further, that, even if the limitation over, on the death of John without issue, should be held to be good, the same result would follow, because the gift over was to a class, and James was the only member of the class in existence at the time the gift took effect.

The purpose of all rules of construction is to ascertain the intention. When this is done, effect must be given to it, if it can be done without violating any settled rule of law. In ascertaining the intention, "it is necessary that the whole instrument should be considered, and effect must, if practicable, be given to every clause and word in it." Shaw v. Robinson, 42 S. C. 342, 20 S. E. 161. Another rule applied in the construction of deeds is that, of two irreconcilably repugnant clauses, the first shall prevail. But this is a rule of last resort to be applied only "when all reasonable modes of reconciling the apparent repugnancy have failed." Bowman v. Lobe, 14 Rich. Eq. 271. It is subject, too, to the paramount rule that the intention, as gathered from the whole instrument, shall prevail. 1 Dev. on Deeds, § 213 et seq.; Carllee v. Ellsberry, 82 Ark. 209, 101 S. W. 407, 12 L. R. A. (N. S.) 956, and note, 118 Am. St. Rep. 60. These principles are elementary and are recognized and applied in all our decisions.

Let us, then, examine this deed, in the light of these principles, to ascertain the intention of the grantor. In the premises, hedeclares that the grant is made "in the following way and manner, and with the limitations and reservations below expressed." Then, he declares that, after division, the sons shall hold their moieties in severalty, but "with this limitation, if either * * * should die leaving no issue living at the time of his death, " his brothers and sisters shall take his moiety, "to them their heirs and assigns * * * in fee simple." Thus far, as no words of inheritance are used in the grant to the sons, under our decisions, they would take only a life estate. But the deed must be construed as a whole, and, if possible, effect must be given to every word and clause in it. Therefore, looking to the habendum, we find that it is to James and John, respectively, "and their heirs and assigns, respectively, " not absolutely, but "subject to the limitation over to their brothers and sisters, as aforesaid." We cannot take this habendum in part, and use it to enlarge the estate previously given, without giving full effect, if practicable, to the condition therein expressly referred to upon which alone that estate may be enlarged. Therefore the words "heirs" there found cannot be used to enlarge John's estate, except in so far as it may be done consistently with the previous limitation over, to which its enlargement is expressly made subject; that is, it must yield to the contingency therein expressed. If we couple the word "heirs" in the habendum to the granting clause so as to give John a fee simple absolute, we completely ignore both the limitation over in the granting clause, and also the express reference to that limitation in the habendum itself, wherein the use of the word "heirs" is expressly qualified. This would violate the rule that the limitation over, being in the first part of the deed, should have preference, and also the rule that effect must be given, if practicable, to every word and clause in the deed, and it would defeat the clearly expressed intention of the grantor. Note, also, that even the warranty is not to James and John and their "heirs, " without qualification, but it is of the estate granted, "as aforesaid."

Giving effect to all parts of the deed, the conclusion is irresistible that the grantor did not intend that John should take a fee simple absolute. It is equally clear that he did intend that he should take the entire estate, if he left issue; but, if not, that it should go to the grantor's other children and "their heirs and assigns, as tenants in common, in fee simple." Therefore John took a defeasible fee, which was defeated on his death without issue.

The limitation over is not void, as supposed, because it violates the rule that a fee cannot be limited after a fee in a common-law conveyance. This is not a fee mounted upon a fee, but a fee to take effect in place of, or by substitution for, another which depended upon a contingency. In Bowman v. Lobe, 14 Rich. Eq. 271, similar limitations in a deed were construed. There, the grantor gave to his six sons certain lands, "during their natural life, " and added, in the granting clause:

"If any of my sons die without an issue of the body, the lands mentioned above to be equally divided among my sons above mentioned that are then living."

Then, after reserving a life estate to himself, he said:

"At my death, it (meaning the land) shall be immediately transferred to my sons. * * * as above mentioned, to their heirs and assigns."

After the death of the grantor, B., one of the sons, died without issue, leaving two brothers surviving him. Held, that B.'s estate did not descend to his heirs; that he took a fee, defeasible on his death without issue; and, that contingency having happened, the estate went over to the surviving brothers, under the limitation in the deed. The court said:

"There was not a fee mounted upon a fee, but a fee made subject to a contingency, whereby it was defeated. * * * That such contingent or conditional limitation may be made by deed, the authorities cited in the standard works, to which reference has just been made, will show."

The court referred to 4 Kent, 210, where the author says:

"The rule (in Shelley's Case) does not operate so as absolutely to merge the particular estate of freehold, where the limitations intervening between the preceding freehold and the subsequent limitation to the heirs are contingent, because that would destroy such intervening limitations. The two limitations are united, and executed in the ancestor, only until such time as...