Tanner v. Ellis

• Decision Date: 05 May 1910
• Citation: 127 S.W. 995
• Parties: TANNER et al. v. ELLIS et al.
• Court: Kentucky Court of Appeals

127 S.W. 995

TANNER et al. v. ELLIS et al.

Court of Appeals of Kentucky.

May 5, 1910

Appeal from Circuit Court, Bourbon County.

"Not to be officially reported."

Action by J. B. Tanner and others against Jennie B. Ellis and others. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Emmett M. Dickson and Walton, Dickson & Walton, for appellants.

Talbott & Whitley and C. A. McMillan, for appellees.

HOBSON J.

On May 16, 1849, Julia Elgin executed to her daughter, Mary Hoon the following deed:

"This indenture made and entered into this 16th day of May, 1849 between Julia Elgin of the one part, and Mary Hoon of the other part, both of the county of Bourbon state of Kentucky,

"Witnesseth:--That the said Julia Elgin for the consideration of one dollar to her in hand paid by the said Mary Hoon and for the further consideration of the natural love and affection of the said Julia Elgin to the said Mary Hoon, hath granted, sold and conveyed, and by these presents doth grant, give, sell and convey to the said Mary Hoon a lot of ground known and designated on the plat of the town of Paris as lot No. 11, being the same lot now occupied by the said Elgin and conveyed to her by deed of date 16th of July, 1846, by James Hutchings and wife. [Here follows description.] To have and to hold the said lot of ground with the appurtenances on the condition and in the manner following, to wit:--That the said Julia Elgin shall have, use, occupy and enjoy the said lot of ground and premises and the use and rents thereof during her natural life; and after her death the same shall belong to the said Mary Hoon during her natural life, free from the control or claim of any person whatsoever, and at her death descend to the heirs at law of said Mary Hoon. The said Julia Elgin reserves the right to sell or dispose of said house and lot with the consent of said Mary Hoon and to invest the proceeds thereof in other property; and after the death of said Elgin, the said Mary Hoon may invest said property in other property, if said parties may consider it to their advantage to do so, and if there should be a sale of said lot of ground in other property, the property acquired by the sale of said lot is to be held and pass as before stated; that is to say, to be held, used and enjoyed by the said Elgin during her life and then by said Mary Hoon during her life, and after her death to go to her heirs at law.

"In witness whereof the said Julia Elgin hath hereto set her hand and seal the date above. Julia Elgin."

At the time the deed was made, Mary Hoon had but recently separated from her husband, and had one daughter, Julia Hoon, born in 1845. Shortly after the execution of the deed there was born to Mary Hoon another child named Ray Hoon. Julia Hoon married Ben Kidwell, and there was born of that marriage one child, Charles Kidwell. Ray Hoon died in infancy, Julia Hoon died in 1887, and her son, Charles Kidwell, died about a month thereafter, an infant. In the meantime Mrs. Elgin had died, and Mary Hoon, having survived all her descendants, died in the year 1907. She left a will by which she devised the land to Jennie B. Ellis, and this suit was instituted by the nephews and nieces of Julia Elgin, claiming the property as the heirs at law of Mary Hoon. The circuit court dismissed their petition, and they appeal.

The case turns on the proper construction of the deed. If by the deed Mary Hoon and her children took a vested estate in the land, then upon the death of her children and grandchild she inherited from them, and so took the entire estate. On the other hand, if under the deed she took only a life estate with a remainder to those persons who were her heirs at law at her death, then her children who died before her death took no interest in the land, and it descended at her death to her mother's nephews and nieces. So the case turns on the question whether the deed created a vested or a contingent remainder.

The object of all rules of construction is to arrive at the intention of the parties; and, when upon a consideration of the whole instrument, the intention of the parties in the light of their surrounding circumstances sufficiently appears, it will be carried out. The court must look to the whole instrument to ascertain the intention of the parties rather than to a particular word, for it is well known that persons frequently use words in their popular sense rather than in their strict legal meaning; and, if there is enough in the paper to show what the parties in fact meant, their actual intention will be enforced. See Hall v Wright, 121 Ky. 16, 87 S.W. 1129, 27 Ky. Law Rep. 1185; Bowe v. Richmond, 109 S.W. 359, 33 Ky. Law Rep. 173; Cook v. Hart, 117 S.W. 357; McSurley v. Venters, 104 S.W. 365, 31 Ky. Law Rep. 965. The law favors that construction of an instrument which results in a vested remainder rather than a contingent remainder, if such a construction can be applied without doing violence to the language of the instrument. Baxter v. Bryan, 123 Ky. 235, 94 S.W. 633, 29 Ky. Law Rep. 659; Moore v. Sleet, 113 Ky. 600, 68 S.W. 642, 24 Ky. Law Rep. 426, and c...