Bedford Lodge I. O. of O. F., No. 202 v. Lentz

Opinion by

Mr. Justice Dean,

This case has not been free from difficulty on the authorities; but careful research and deliberate consideration have resulted in the conclusion that the judgment should be affirmed.

James Moore, the father of Mary Lentz, wife of Hiram Lentz, on September 10,1843, executed a deed to the husband and wife for parts of lots Nos. 148 and 149 in the borough of Bedford. The premises of the deed, beyond question, convey to the husband and wife a fee simple in the lots. And standing alone, it would be held that the husband and wife took the land by entireties. If this were so, the husband having survived the wife, the entire estate survived to him, and this plaintiff, the purchaser at sheriff’s sale on a judgment against him, is entitled to possession. But the words conveying a fee simple do not stand alone; they are followed by these in the habendum of the deed:

“ To have and to hold the said parts of lots aforesaid, hereditaments and premises hereby granted or mentioned or intended so to be, with the appurtenances, unto the said Hiram Lentz and Mary Lentz, his wife, their heirs and assigns, to and for the only proper use and behoof of the said Hiram Lentz during the term of his natural life, with the remainder to the said Mary Lentz, bis wife, her heirs and assigns forever.”

This language, it is contended by appellees, limited the husband’s estate to one for life, which cannot be enlarged to a greater one by any technical construction of the preceding grant. We concede that however probable was the intention of the grantor from facts dehors the deed not to subject his daughter’s children to exclusion from the possession in case she died before her husband, nevertheless, the intention must be gathered from the words in the deed, and not from circumstances outside it. What is the manifest intent from the deed itself? The cardinal rule of interpretation of a deed is the intent of the parties, except in the application of the rule in Shelly’s case, which,, in almost every instance, defeats a particular intent. The grantor here did not intend to make a tenancy for life a source of inheritable succussion, consequently there is no technical rule of construction which comes in to defeat a particular intent. The habendum expressly limits the estate of the husband to one for life, with the remainder to the wife, her heirs and assigns. True, the premises described an estate by entireties, and during their joint lives the grantees practically so held; neither could have ousted the other; neither could have had estrepement for waste, partition or account render against the other. But, evidently, the grantor intended the estate of the husband should end with his life, for he so says. We do not concur in the argument of the learned couusel for appellant, that the habendum is so totally repugnant to the premises, that it must give way, leaving, in consequence of his survivor-ship, the whole estate to the husband. We concede there is some conflict in the authorities, especially in the English cases. This conflict is noticed in Moss v. Sheldon, 3 W. & S. 160. Sargeant, J., there says: “ The question in this case is as to the effect of the.habendum in controlling and qualifying the estate granted in the premises.” Then, after citing some of the conflicting cases, he says: “ But it is not necessary to pursue further the abstract question of the power of the habendum to abridge the estate granted in the premises, because it is clear by the current of all the authorities, that it may enlarge, expound, qualify and vary it.” To the same effect are Porter v. Mayfield, 21 Pa. 264, and Tyler v. Moore, 42 Pa. 374. In Ivory v. Burns, 56 Pa. 300, the words qualifying the estate granted by the premises were inserted just before the names of the subscribing witnesses ; this Court held that they were not repugnant to the grant, but created a trust consistent with it. It is not necessary to decide what would have been the construction of this deed if the grantor had undertaken by the habendum to create a life estate, and had made no provision as to the remainder; it is sufficient to say he attempted no such grant. All the cases cited by appellant are on the assumption that the estate granted is a common-law estate by entireties; no note is taken of the effect of the habendum in qualifying the estate of the husband. This, on the authorities quoted, he could do and did do.

The judgment is affirmed.