Hauser v. Craft. , 134 N.C. 319 ( 1904 )

We decided at the last term in Whitfield v. Garris,, 134 N.C. 24, that when property is given to a person absolutely, and if he should die without leaving children or heirs of his body then over, the primary devisee takes a fee defeasible on his dying without leaving children, and that the children, if he leave any, take no estate as purchasers under the will by implication. If the first taker dies leaving children and without having disposed of his defeasible estate, the children take from him by descent, and they cannot take it by implication as purchasers unless that was the intention of the testator expressed in the will or to be clearly inferred therefrom. 1 Underhill on Wills, sec. 468. We could discover no such intention of the testator in that case. The rule thus stated also applies where the devise is in the first instance to the parent for life and then over to ulterior devisees if the parent dies without leaving children. But in the latter case it is said that the law will raise an estate in (323) remainder by implication in favor of surviving children upon slight indication of an intention to that effect, and one reason for the rule is that it would be absurd to assume the testator intended that the death of the first taker, leaving no children, should entitle the devisee who is to take in remainder or by way of executory devise, while the converse — that is, his death, leaving a child — will defeat the limitation over without benefiting either parent or child. 1 Underhill on Wills, sec. 468, p. 623; Kinsella v. Caffery, 11 Irish Ch., 154; Ex parte Rogers, 2 Maddox Ch., 1 Am. Ed., 576. Whether this be the correct principle or not, it is certainly true that if it sufficiently appears from the will the testator so intended, the law will raise an estate by implication in favor of the children in such a case, notwithstanding the estate is not expressly limited to them in the will. We must therefore determine in our case whether Katherine Hauser took only a life estate in the Elder tract of land, which is the property in dispute, or an estate in fee; and if she took only a life estate, whether the plaintiffs took an estate in remainder by implication, or, if not, whether, lastly, they took as heirs of the testator under the ulterior limitation. It is admitted that Katherine Hauser took only a life estate, if the words in the third item, namely, "which is to be hers during her natural life only," should not be confined to the gift of the "meadow land and cartway," but should be extended to the limitation of the Elder tract. The defendants contend that if the third item of the will is construed as it is punctuated, the qualifying words apply only to the meadow tract and cartway and not to the Elder tract. That a will is couched in ungrammatical language and is incorrectly punctuated are facts of little importance in construing it. The punctuation may in certain cases have some effect in ascertaining the true meaning, and it is said to be a guide, though not a very reliable one, to aid us in seeking for the testator's intention, but the (324) latter must always be determined exclusively from the words employed by the testator, viewed in the light afforded by the context. The punctuation, or the lack of it, is not material and may not be omitted or supplied by the court. Commas may be inserted for periods, or vice versa, in order to accomplish the paramount object, which is the ascertainment of the testator's will or meaning. 1 Underhill, supra, sec. 369. But while this may be done when necessary to effectuate the intention of the testator, we do not think that the punctuation of the third item of the will evinces a purpose to separate the qualifying clause from that part of the devise which precedes the reference to the meadow land and cartway, and to restrict its operation entirely to the latter. It is evident from the entire structure of that item of the will that the testator intended to limit the interest of Katherine Hauser in all the property described in it to a life estate. If he had intended differently he would in some way have indicated his purpose to give a fee in the property other than the meadow land and cartway in more explicit language. There is just as much reason for holding that the restrictive words apply to the Elder tract of land as there is for construing the will so that they may be confined in their operation to the meadow land and cartway. The relative pronoun "which" must be understood to refer to all that precedes in that item of the will, and especially is this so when the clause which it introduces is placed in immediate connection with the last provision of the item, namely, "and should the said Katherine Scott die without leaving any child or children, the property which I have given to her to be divided among the rest of my heirs." This provision follows the clause, "which is to be hers during her natural life only," and is joined to it by the conjunction "and," which shows that the testator intended that the two should be taken and construed together; (325) and if this is done, it is perfectly clear that the testator intended to give his granddaughter, Katherine Scott, a life estate in the Elder tract. The interpretation we have thus placed upon the item seems to us to be the only natural and reasonable one; and, besides, we are utterly unable to see any good reason why the testator should have given his grandchild an estate for life in the two acres of meadow land and the cartway, and a fee in the other property. A careful reading of the item shows that his purpose was to make ample provision for this grandchild, who lived with him and who was dependent upon him, by giving her a farm, with slaves to cultivate it, and other necessary personal property for its better and more convenient enjoyment, and the meadow land, "with the privilege of the cartway to and from it," as a means of ingress and egress, was given as an appurtenance to the larger tract, and as being necessary also for its advantageous enjoyment. It is all one devise and bequest, and the use of periods and capitals was not intended to disassociate the different clauses so as to constitute each one of them as the expression of a separate and distinct gift of the property therein described. The defendant's counsel contended that, because of the peculiar punctuation and the use of capitals, the restricted clause applied only to the meadow land and cartway; but if we consider the method of punctuation as indicating the intention, there is no reason why that clause should not be as well applied to the horse, bridle and other species of personal property mentioned and described immediately before the meadow land and cartway. They are separated only by semicolons, and the grammatical construction would require the restriction to be extended to them.

In construing wills, as exactly the same language or form of expression is rarely used, each case must, generally (326) speaking, be decided upon its own facts, and the intention of the testator is to be diligently sought for, and when found is to be carried out, if not contrary to law, but the intention must be gathered from the whole will. We can derive little aid from merely technical rules. In this case it appears that at the time the will was executed Katherine Scott was living with her grandfather and was unmarried. It is manifest he intended that in the distribution of his estate she should represent her mother, who was his daughter (which is admitted in the defendant's brief), and doubtless he would have given the property to Katherine in fee, as he did to all his daughter, but for the fact that the latter were married, or had been, and were of sufficient age and experience to manage what he should give them with judgment and discretion. They were practically settled in life. With his grandchild, who must have been the object of his most anxious care and solicitude, it was quite different. He knew full well that she might not, as she did not, attain her majority until long after his demise, and that, inexperienced as she was, she perhaps would not have anyone to advise her in the management of her estate. It was for the purpose of providing against ultimate loss by reason of her own improvidence, or that of her husband, if she should marry, that he did what seemed to him best to safeguard what may be called her patrimony, so that she could enjoy the use and income of it during her life, and so that the remainder would be preserved for her children, if she had any. No other reason can be assigned for his making the distinction which he did between her and his daughters. We could not for a moment yield to the suggestion that his affection for her was not as strong as it was for them, and that he wished to discriminate against her. Her peculiar and dependent situation was calculated to arouse in him a very tender and anxious regard for her future condition in life, and, though not abating any of his affectionate interest in her, nor desiring less to see (327) her as well placed as the others, he no doubt felt that, as her future course in life was uncertain and her ability to prudently manage what she would receive from him was unknown, it was best she should not have the absolute ownership of the property; but, whatever may have been his motive, we are unable to look at this will from any standpoint which does not reveal the clear intention of the testator to give the property, and all of it, to Katherine Scott for life. This conclusion takes the title out of the defendants, but it does not alone entitle the plaintiffs to succeed in this action, because they are suing for the recovery of real property, and, according to the invariable rule, they must recover upon the strength of their own title and not upon the weakness of the title of their adversaries. The defendants are not required to show that they have any title in the land, but the plaintiffs must show affirmatively that they have a title which is good against the world, or good against the defendants by estoppel. So that, we must go further and decide whether the children of Katherine, who are the plaintiffs in this action, took an estate in remainder, at her death, by implication. There is no express gift to them, and if they took at all it must have been by construction of law. We are clearly of the opinion that they did so take. The limitation is, "Should the said Katherine Scott die without leaving any child or children, then the property which I have given to her to be divided among the rest of my heirs." It will be observed that Katherine had only a life estate, and therefore at her death all of her interest ceased and determined. The heirs of the testator could not take unless she died without children, because it is expressly provided by the will that they should take only upon the contingency of her dying without leaving children, and the fact that she died leaving children completely divested the testator's heirs of all right or title in the land. The presumption is that he did not intend to (328) die intestate as to any of his property, and this presumption is strengthened by the very language of the will, which on its face shows that he intended to dispose of all of it. If the estate of Katherine expired at her death, and the heirs cannot take because she left children, who, then, can take, unless it be the children? Holton v. White,23 N.J.L. 330; Theobold on Wills, p. 569. The implication is not only necessary, but irresistible, that in the situation of the parties, as now presented to us, and giving to the will of the testator a natural and reasonable construction, it was intended by him that the plaintiffs should be the objects of his bounty and should take the property in remainder after the death of their mother. In this respect the case is not at all like that of Whitfield v. Garris. There was nothing in the will under construction in that case to raise any such an implication, as the estate was limited to Franklin Whitfield in fee; and, besides, the presumption was that the testator did not intend to disinherit his own heirs. There were others than the children who could take, and the children could take only by descent from their parent. In the case at bar we must hold either that it was intended the children should take a remainder at the expiration of their mother's life estate, or that the fee should be in abeyance, or we must disregard the plainly expressed intention and direction of the testator and hold that he intended that at the death of the tenant for life the estate should go to his heirs. The adoption of either of the last two alternatives would be opposed to every known principle of the law applicable to such cases. We must abide by the rule as established by the authorities we have cited, and give our decision upon this point in favor of the plaintiffs.

It was suggested by counsel at the bar that Katherine Scott, under the rule in Shelly's case, took an estate tail, which, by the statute of 1874 (Code, sec. 1325), was converted into a (329) fee simple. The rule does not apply to this devise. The words of limitation are not such as bring our case within the principle of that rule, and we do not think it can be shown by any of the authorities to have the slightest bearing upon the question involved. There are no words used which indicate any intention on the part of the testator that Katherine Scott should take an estate of inheritance, either in fee simple or in fee tail, as the only word used is "children," and that word, by all of the authorities, is not sufficient for the purpose of creating such an estate. Moore v. Parker, 34 N.C. 123; Ward v. Jones,40 N.C. 400; Howell v. Knight, 100 N.C. 254; Mills v. Thorne, 95 N.C. 362;Starnes v. Hill, 112 N.C. 1; 22 L.R.A., 598; Leathers v. Gray,101 N.C. 162; 9 Am. St., 39. The estate of the children could not become absolute and indefeasible until the determination of the life estate, as the remainder was contingent, and this prevented the operation of the rule.Starnes v. Hill, supra. Besides, the application of the rule would defeat the well-defined intention of the testator, and there are not sufficient technical words in the will to override this intention. In such a case the rule can have no place.

Counsel further contended that the plaintiffs, as the children of Katherine Hauser, formerly Katherine Scott, are rebutted by the warranty in her deed, under and through which the defendants claim the land. This position is equally untenable. All collateral warranties are abolished, and all warranties made by any tenant, for life, of lands, tenements or hereditaments, the same descending or coming to any person in reversion or remainder, shall be void; and all such warranties as aforesaid shall be deemed covenants only and bind the covenantor in like manner as other obligations. This is the language of the statute (Code, sec. 1334), and is too clear and explicit to admit of any doubt as to its true meaning. It covers the case completely, and is a full and conclusive answer to the (330) contention; and, besides, the authorities are all against the defendants upon this point. The warranty of Katherine Scott, who had only a life estate, does not bar or rebut the plaintiffs, who are her children, because the latter claim as remaindermen, and therefore not by descent, but by purchase. This is the construction of our statute, it being a re-enactment of 4 Anne, ch. 16, sec. 21, which has received the same interpretation. Moore v. Parker and Starnes v. Hill, supra. The matter is fully and ably discussed by Pearson, C. J., in Southerland v. Stout,68 N.C. 446. The warranty in our case has the force and effect only of a personal covenant, the difference between which and a warranty, which operates as a bar by way of rebutter, is explained in Wiggins v. Pender,132 N.C. 628; 61 L.R.A., 772.

The last defense is that the defendants have had adverse possession for a sufficient length of time to bar the right of the plaintiffs; but this position is clearly untenable, as it is agreed in the case that Katherine Hauser did not die until 1899, and this action was commenced in 1900. The statute was not set in motion until her death, as the plaintiff had no right to the possession before she died or during the continuance of her life estate.

It was agreed in the court below that certain questions as to rents, profits, improvements and betterments should be reserved, to be considered and decided hereafter in that court.

We find no error in the judgment of the Superior Court, and further proceedings below may be had in accordance with the agreement of the parties and the law. No error.

Cited: Wilkinson v. Boyd, 136 N.C. 47; Anderson v. Wilkins,142 N.C. 161; Faison v. Odom, 144 N.C. 109.

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