Trapp v. McCormick

• Citation: 130 S.W.2d 122
• Parties: TRAPP v. McCORMICK et ux.
• Decision Date: 01 July 1939
• Court: Supreme Court of Tennessee

130 S.W.2d 122

TRAPP v. McCORMICK et ux.

Supreme Court of Tennessee.

July 1, 1939.

Appeal from Chancery Court, Putnam County; A. F. Officer, Chancellor.

Suit for partition by Alcie Trapp against Casto McCormick and wife. Decree for defendants, and complainant appeals.

Affirmed.

Worth Bryant, W. L. Swallows, and Wesley P. Flatt, all of Cookeville, for appellant.

Ernest H. Boyd, of Cookeville, and H. B. McGinness, of Carthage, for appellees.

CHAMBLISS, Justice.

This case involves the construction of a certain deed executed by the father of the complainant, L. A. Bohannon, on the 31st of August, 1932. It becomes necessary to consider the deed as a whole. The pertinent parts, omitting the description of the land, read as follows:

"For the consideration of the love and affection I have for my two daughters, Mary Jane Bohannon and Pearl Lee Bohannon McCormick and the further consideration that my said daughter Pearl Lee McCormick pays to my grand daughter Aline Brown the sum of Twelve Hundred fifty dollars; said sum to be paid on or before 12 months after my death, but said sum is not to bear interest until the date of my death, at which time same shall draw interest, and to secure the payment of said sum a lien is hereby retained on the interest of the said Pearl Lee McCormick in and to the land herein described, I, L. A. Bohannon, have this day bargained and sold and do hereby transfer and convey unto the said Mary Jane Bohannon and Pearl Lee McCormick, their heirs and assigns, with the reservations herein named, the following tract or parcel of land in the fourth civil district of Putnam County, Tennessee, and described as follows: (Here follows description of land.)

"To have and to hold all the estate, title and interest in and to the above described tracts of land, with the reservations hereinafter set out, to Mary Jane Bohannon and Pearl Lee Bohannon McCormick, their heirs and assigns forever. I covenant with the said grantees that I am lawfully seized and possessed of said land, have a good right to convey it, and that it is unincumbered.

"I further agree and bind myself, heirs and legal representatives to warrant and forever defend the title of said land to the said Mary Jane Bohannon and Pearl Lee Bohannon McCormick with the reservations herein set out, their heirs and assigns against the lawful claims of all persons whomsoever.

"But I do hereby expressly reserve and retain the right to live on, use and control and retain to myself all the rents and profits of said land for the remainder of my life. It is also provided that none of the timber, except such as may be necessary for the upkeep of said land, may be cut and sold from said land without the mutual consent of the parties hereto. And in the event my wife should survive me, she is to have the right to live on said premises and the parties hereto are to pay their equal share with my other children in her upkeep and support.

"It is further provided that in the event my daughter Mary Jane Bohannon, who is now unmarried, should die without issue, then and in that event her undivided interest in the above land shall pass to and be vested in J. L. Bohannon, L. D. Bohannon, Fannie A. Brown, Pearl Lee McCormick, Byrdie Mae Simpson, and my grand-daughter, Aline Brown, share and share alike. This deed is made along with other deeds, in making a division of my property between my children and heirs, and no possession is to be given until my death.

"Witness my signature, this August 31, 1932.

                                "L. A. Bohannon."
                

The complainant is a daughter of L. A. Bohannon who was not named in the above-quoted deed, but who files her bill claiming an undivided interest in the land conveyed, as an heir of Mary Jane Bohannon, and she files this bill to assert this interest and prays for partition.

L. A. Bohannon died January 19, 1935. His daughter, Mary Jane Bohannon, referred to in the deed, had died intestate, before her father, on or about January 31, 1934. The wife of L. A. Bohannon died subsequent to the death of Mary Jane Bohannon and prior to the death of L. A. Bohannon. Mary Jane Bohannon was never married and died without issue.

The rights of the complainant rest on the insistence that the first or granting clause of this deed creates a fee in the first taker, Mary Jane Bohannon, and that restrictions and limitations otherwise and subsequently appearing in the deed are ineffective.

The learned Chancellor, in passing on the question, and holding against the contention of the complainant, said:

"The Court has carefully examined the deed and considered the contentions of the parties as set forth in oral argument on the hearing of the cause, and in the briefs filed, and is of the opinion that under a proper construction of the aforesaid deed, the complainant has no interest in the land sought to be partitioned, and that her bill cannot be maintained. The deed in question reserves to the complainant, L. A. Bohannon and his wife a life estate in said property, and vests the remainder in his daughters, Mary Jane Bohannon and Pearl Lee McCormick, and with reference to the remainder interest of Mary Jane Bohannon it is provided `that in the event my daughter, Mary Jane Bohannon, who is now unmarried, should die without issue, then and in that event her undivided interest in the above land shall pass to and be vested in J. L. Bohannon, L. D. Bohannon, Fannie A. Brown, Pearl Lee Bohannon, Byrdie Mae Simpson and my granddaughter Aline Brown, share and share alike.'

"Considering the whole deed, the intent of the grantor is plain, there being no such repugnancy between the clauses so that the technical or subordinate rules of construction need be resorted to. The estate of Mary Jane Bohannon was a vested remainder, subject to the contingency of dying without issue, with a limitation over as to her share. She died prior to the death of the grantor and without issue, therefore the limitation over took effect."

We find no error in this holding of...