Hibbard v. Hurlburt , 10 Vt. 173 ( 1838 )

The opinion of the Court was delivered by

Phelps, J.

The first question raised in this case involves the construction of the will of Andrew Hazen. The testator gives, in the first place, a life estate to his widow, Polly Hazen, in “ all his real and personal property.” He then bequeathes certain legacies to the children, charging them upon his real estate, — then devises a portion of 'his real estate, thus charged,to two daughters, and lastly, another portion, charged with certain legacies, payable on the decease of his widow, is devised to his son Spelman Hazen, from whom the defendant claims title. This last devise includes the land in question. The devise to his two daughters, is expressed to take effect at the decease of the widow, when her estate in the land determines. The devise to Spelman makes no mention of the life estate of the widow.

Upon this will it is argued, that Spelman Hazen took an estate in fee under the last clause, or, in other words, took the land unincumbered with the widow’s life estate ; and this upon the ground that, of tvyo inconsistent bequests or clauses of a will, the latter supersedes and abrogates the former.

Without stoppiog to inquire into the propriety of this rule, but admitting it as good law, we doubt its applicability to this case. The rule is to be applied only in cases of absolute repugnancy, that is, where the two clauses cannot be made to stand together. It is a well settled rule of con- . , , , struction bthat the whole instrument must be taken together. ^his rule requires no argument nor authority to sustain it. Each clause is to be regarded as qualified by others having reference to same subject, and the intent is to be gathered from the whole. If then, by any rational construction, the several parts can be made to harmonize, and to consist with the obvious general intent of the maker, there can be no good reason for rejecting any part, or denying to it its legitimate effect. Is this then a case, where a part of the will is to be rejected for repugnancy, or a case where all the parts of the will may be consistently sustained, by giving to each its natural meaning and effect ?

We think it is the latter; unless, indeed, it can be made out, that there is repugnancy in the testator’s giving a life estate to his widow, with remainder to his children. Of his intention, in this case, to create both estates, there can be no doubt; and that intention must be effectuated, unless there be a legal impossibility that they should subsist together.

Another exception, however, is taken in this case, and it is, that the judge should have admitted the evidence of adverse possession in Spelman Hazen, at the date of the lease from the widow to the defendant.

It is togbe borne in mind, that Andrew Hazen is the common source of title, — the defendant being the lessee of the widow of A. Hazen, and claiming a life estate under the will, and the plaintiff being the grantee of Wadsworth, who derived his title from Spelman Hazen, who claims under the same will. The widow’s lease to the defendant is dated April 18, 1832, and Spelman’s deed to Wadsworth the 16th of April 1834.

By this last deed, the premises in question aie conveyed to Wadsworth, “ subject to a life estate in my mother Polly Hazen.” As Wadsworth took under this deed a qualified estate only, that jg to say, the remainder only, and as his deed specifies the life estate of the widow, as the particular estate upon which the remainder depends, we see not how he, or his assigns, can be permitted to question the right of the widow, or of her lessee, whose lease, was in existence at the date of the deed.

But it is insisted, that if Spelman Hazen was in posses^ sion, claiming adversely to the widow, at the time of her ' ° J . lease to the defendant, that lease is void under the statute, as against him, (Spelman) or his assignees. The statute, in terms, makes the deed void, but its practical operation is, like that of the statutes against fraudulent conveyances, to render the deed voidable by those, for whose protection the statute was enacted. It never was supposed, that a conveyance to the party in possession, and in confirmation of his title, was within the statute, nor can it be admittéd that such deed is void, in any case, where the outstanding title becomes united with that of the party in possession, in such a way as to combine the two, in one title, in any person claiming under both. To illustrate this position, we will suppose A. to be in possession of a tract of land, to which B. claims title adversely to A. — B. conveys to C. This conveyance from B. to C. is void or voidable as to A. by force of the statute. But if C. conveys to A. then the defect is cured, and A. may set up the deed as a good and valid conveyance of B’s title. The case would be the same, if A- convey to C. in which case C. might stand upon B’s title, as against a subsequent grantee of A. or B. or against a stranger. The reason is, that the voidable deed becomes, in such cases, auxiliary to the title of the party in possession, and is no longer within the spirit or purpose of the statute.

The application of this doctrine to the case now under consideration is obvious. When Spelman Hazen comes to recognise and submits to the right of the widow, and conveys his estate subject to her life estate, the conflicting titles become united and blended. He parts with his own entire interest, and, at the same time, restricts his grantee from contesting her right; thus engrafting her life estate into his title, and confirming her lease; for as she would be estopped from all claim in derogation of her own lease, the whole pro ceeding would enure to the benefit of her lessee, the defenfendant. We are, therefore, of opinion, that the evidence of adverse possession, in Spelman Hazen, was properly rejected, as, upon no supposition, of which the case admits, could the defendant be permitted to avail himself of any conflict between Spelman and the widow, which may have subsisted previous to the conveyance to Wadsworth, by which the conflicting claims are united in one title,

Another point is made in the case, and that is, that the lease from Polly Hazen to the defendant does not include *n question. This point was determined on the last circuit, and of course is not much relied on here. But ag decision has not been reported, it may be proper to explain the view taken of this point, on that occasion. The description in the lease is this ; “ all the tracts, pieces, and parcels of land, lying and being in the towns of Grand Isle and North Hero, which were left to me by my late husband Andrew Hazen.” The description thus far includes the land in question. But the lessor adds, “ and being the farm I now live on and occupy.” It is alleged that the land in question is no part of the farm, on which the lessor then resided.

Upon this statement, the question arose, whether the latter clahse was to be regarded as qualifying and restricting the former, and thus excluding this land from the general description, or as a matter merely of further description, introduced for the purpose of more particularity, and found not to consist with what preceded. We then considered it of the latter kind, and held that the last expression did not operate as an exception of any thing which was included in the preceding clause.

We know of no abstract rule, of universal or even general application, which would, of itself, solve the doubt. The intention of the party, as gathered from the instrument itself, is the polestar of construction, and as that intention is to be gathered from the language used, as well as the particular purpose of the instrument, it necessarily follows, that when an incongruity is found to exist, it must be disposed of by the light afforded by the particular circumstances of the case;

In this instance, the comprehensive description, used in the outset, seems to exclude the idea of an intention to make the exception, and the latter clause, “ and being,” &c., evidently implies that, in the mind of the party, the import was' the same as that of the preceding description. At the same time, the expression, “ the farm on which I live,” seems too loose and indefinite to create a specific exception, more especially, a,s, in her mind, the several pieces of land, being situated in the same vicinty, might have been comprehended in that description. At all events, had it been intended to make the exception, it is hardly possible that so definite a general description should have been given, and if it had' been, that so loose and unsatisfactory a mode should have been adopted to create the exception.

Judgment of the County Court affirmed.