Beacom v. Amos , 161 N.C. 357 ( 1913 )

Walker, J.,

after stating the case: The contention of the plaintiff is that the two deeds exchanged between her and her sister, Annie Amos, operated only as a partition of the lands therein described between them, and only ascertained the several share or portion'of each of them as tenants in common of the estate devised to them by their father, and therefore, that each one of them took, not an absolute estate in fee in the part thus allotted to her by the deed from her sister, but a contingent remainder or executory devise, and consequently that each still held the estate in her several share, under the contingent limitation of the will, and it was subject to be divested or determined if she failed to survive her sister. In other words, that the estate of each in her several share was the same as was devised by the will, and not any new estate created by the deed of her sister. It may be conceded, for the sake of argument, that ordinarily a voluntary partition between tenants in common, or one accompanied by deed, has, in law, only the effect of an assignment to each of the tenants of his several share or part of the common property, merely ascertaining and fixing the physical boundaries thereof, and that no new estate is created or manufactured, which was the view taken of such a partition in Harrison v. Bay, 108 N. C., 215; Harrington v. Rawls, 131 N. C., 39; Jones v. Myatt, 153 N. C., 229; but this concession, if carried to the fullest extent justified by those cases and others of like tenor, does not, by any means, sustain the plaintiff’s contention, for in this case the parties, by their agreement for a final settlement of all their matters growing out of their rights and interests under the will of their father, and by the very terms of their deeds, have done more than merely set apart each to the other her several parcel of the land. They have conveyed to each other all the interest and estate in the land they acquired under said will, both vested and contingent. It is expressly stated in the papers (which must be taken as parts of one and the same transaction and read and construed together) that they convey to each other an absolute estate in fee simple forever, which necessarily divests the estate of its contingent character or converts it into a vested estate in fee. In accordance with the principle declared in Harrison v. Ray and Harrington v. Rawles, they would take only the contingent estate given by their father’s will, if it had been nothing more than a mere partition, unaccompanied by any conveyance of the contingent interest or of all their interest in the land so acquired, both vested and contingent. It is perfectly clear that the intention, as evidenced by the deeds, was that each should have and enjoy her several portion as the absolute and unconditional owner thereof in fee, so that the right of survivorship created by the limitation in the will should cease and determine and an indefeasible estate should vest instead thereof. Language could not be employed which would more elearly and certainly convey this meaning than that to be found in these papers. The provision of the deed is that Annie Amos should have “the part of the land devised by the will, and conveyed to her by the plaintiff’s deed, in fee simple and absolutely and so that she may hold the same in severalty, free from any claim of her sister,” the plaintiff. And this idea pervades the entire series of deeds wbicb were drawn by Mr. ZollicofEer and executed by tbe parties to effectuate tbeir settlement, wbicb was to be a finality. We bave often decided tbat a deed — and tbe same is true of a series of deeds relating to tbe same "continuous transaction — should be. construed as a whole and according to tbe intention of tbe parties, as expressed therein, and without regard to tbe position of its different clauses or its formal divisions, or any technical precision or accuracy of tbe draftsman in framing tbe instrument.

This Court, in Gudger v. White, 141 N. C., 507, referring to and adopting what bad been said many years before in Kea v. Robeson, 40 N. C., 373, and Rowland v. Rowland, 93 N. C., 214, thus stated tbe modern rule for tbe construction of deeds: “We are required by tbe settled canon of construction so to interpret it as to ascertain and effectuate tbe intention of tbe parties. Tbeir meaning, it is true, must be expressed in tbe instrument; but it is proper-to seek- for a rational purpose in tbe language and provisions of tbe deed and to construe it consistently with reason and common sense. If there is any doubt entertained as to tbe real intention, we should reject tbat interpretation wbicb plainly leads to injustice, and adopt tbat one wbicb conforms more to tbe presumed meaning, because it does not produce unusual and unjust results. All this is subject, however, to tbe inflexible rule tbat tbe intention must be gathered from tbe entire instrument, ‘after looking,’ as tbe phrase is, ‘at tbe four corners of it.’” And again: “Words should always operate according to tbe intention of the parties, if by law they may, and if they.cannot oj>erate in one form, they shall operate in tbat wbicb by law will effectuate tbe intention. This is tbe more just and rational mode of expounding a deed, for if tbe intention cannot be ascertained, tbe rigorous rule-is resorted to, from tbe necessity of taking tbe deed most strongly against tbe grantor.” This case was followed by Bryan v. Eason, 147 N. C., 284, where this sensible and liberal rule of interpretation was approved and applied in tbe construction of three deeds, which were considered as parts of one indivisible transaction, for tbe purpose of deciding what estate was conveyed thereby.’ See, also, Triplett v. Williams, 149 N. C., 394, and authorities therein cited; Smith v. Proctor, 139 N. C., 314; Vickers v. Leigh, 104 N. C., 248; Featherstone v. Merrimon, 148 N. C., 199; Real Estate Co. v. Bland, 152 N. C., 225; In re Dixon, 156 N. C., 26; Thomas v. Bunch, 158 N. C., 175; Highsmith v. Page, ibid., 226; Acker v. Pridgen, ibid., 337; Eason v. Eason, 159 N. C., 539; they being some of the many cases in which this practical rale was applied. In Williamson v. Bitting, 159 N. C., 321, we said: “They (the deeds) were informally and inartifi-cially drawn, but the intent to mortgage all he had in his father’s estate, whether real or personal property, is perfectly evident. The law will not allow the plain intention to be defeated by any omission to use technical words to express it, if equivalent terms are employed for the purpose. This we held in Triplett v. Williams, 149 N. C., 394; Gudger v. White, 141 N. C., 513; and very recently in Acker v. Pridgen, 158 N. C., 337. Judge Story, in Tiernan v. Jackson, 5 Peters, 58, said that, ‘Whatever may be the inaccuracy of expression, or the inaptness of the words used in an instrument, in a legal view, if the intention to pass the legal title to property can be clearly discovered, the Court will give effect to it, and construe the words accordingly.”

If these several instruments are viewed in the light of this settled rule, we cannot escape the conclusion that the parties intended to convey to each other, not merely the contingent interest they acquired by their father’s will, but the entire, unconditional and absolute estate therein. This being so, the next question is, Could they, by deed, convey this contingent interest ? The limitations under the will to the sisters were executory, that is, contingent remainders, or, more precisely speaking, cross-remainders. A bare possibility cannot be transferred at law, but by a possibility we mean the interest, or chance of succession, which an heir apparent has in his ancestor’s estate, the expectancy which one who is next of kin has of coming in for a part of his living kinsman’s estate, which a relative may have of having a legacy left to him; and, perhaps,- there -are other examples. They are uncertain interests and are the true technical possibilities of the common law. 2 Peere Wil., 181; Whitfield v. Faucet, 1 Ves., 381; Atherley on Man. Settl., 57. But execu-tory devises and contingent remainders are not considered as mere possibilities, but as certain interests and estate. Gurnel v. Wood, Willis, 211; Jones v. Doe, 3 T. R., 93. Judge Daniel, speaking of these interests and the cases cited above, says in Fortescue v. Satterthwaite, 23 N. C., 566: “In the last case the judges seem to have considered it as settled that contingent interests, such as executory devises to persons who were certain, were assignable. They may be assigned (says Atherley, p. 55) both in real and personal estate, and by any mode of conveyance by which they might be transferred, had they been vested remainders.” The validity of such an assignment of a contingent interest is fully recognized in Bodenhamer v. Welch, 89 N. C., 78, where it was held that the contingent remainder of a bankrupt in land passed under the deed of his' assignee made in pursuance of a sale of the interest. This doctrine is approved in Watson v. Smith, 110 N. C., 6; Kornegay v. Miller, 137 N. C., 665. It is not necessary to decide in.this case whether the assignment would pass a legal or only an equitable interest, for the defendant has set out the facts in his answer, and relies on them as a defense, and as said by Justice Ashe in Bodenhamer v. Welch, supra, “the defendant, in such a case, might have defeated the action by pleading his equitable counterclaim,” which was that the contingent interest had been assigned to him and he was equitably entitled thereto, and, if necessary, he might have called for the legal title. Stith v. Lookabill, 76 N. C., 465; Farmer v. Daniel, 82 N. C., 152.

But the very question involved in this case has been considered by the Court of Appeals of Virginia in Snyder v. Grandstaff, 96 Va., 473, and decided according to the view we have taken of the law. The facts and decision of that case are accurately stated in the syllabus as follows: “A testator devised and bequeathed his entire estate, real and personal, to his three grandchildren, to be equally divided between them, share and share alike, but on the death of either of them without issue, his or her share should pass to the survivors or survivor, and in case all died without issue, then to collateral kin. Subsequently 'the grandchildren divided the estate amongst themselves, and by deeds reciting the- provisions of the will and the partition which they had made, and their desire to ‘vest exclusive title to the several parcels of land in the said parties to whom they had been assigned and allotted respectively/ each conveyed to the other all of h'is right, title, and interest in the property allotted to such other. One of the grandchildren, in contemplation of marriage, conveyed the property so received by him to Ms intended wife and then married her, and shortly thereafter died without issue or possibility of issue: Held, the title of survivor-ship of the two surviving grandchildren passed by their deed to their deceased brother, in his lifetime, and by his deed is vested in his widow.” If anything, the facts in this record make a stronger case for the defendant than did those in the case cited for the defendant therein. It is manifest, from a careful examination of the deeds and Other relevant documents in evidence, that the parties intended to convey an exclusive and indefeasible title, each to the other. The opinion of Judge Thomas W. Harrison in the Virginia case we have cited, which was adopted and quoted by the Court of Appeals, discusses the question so fully and lucidly and, too, so conclusively, that we merely refer to it for the benefit of any one who may wish further light upon the subject, and, ourselves, forbear further discussion.

It follows from what we have said that the judgment of the Superior Court ih correct and should not be disturbed.

No error.