#### CLARA BEACOM v. JAMES AMOS.

(Filed 13 March, 1913.)

1. Deeds and Conveyances — Contingent Interests — Conveyances in Fee — Title.

Where devisees of lands take subject to contingent interests, as where the fee-simple title would vest in one upon his surviving the other, and each executes to the other, a conveyance of an absolute estate in fee simple forever, of the part of the lands to be held by him in the division of the whole thereof, the agreement thus to divide by the deeds necessarily divests the estate of each grantor of its contingent character, and the grantee holds it in fee absolute.

*3582. Same — Tenants in Common — Estate Conveyed.

Where a division of lands is effected by devisees upon which the will imposes certain contingent interests as between the parties, and from construing the interchangeable deeds it appears that their intent and purpose was to convey the fee-simple absolute to each other, the doctrine that where a voluntary partition of lands or one accompanied by deed.has been made by tenants in common they hold the land thus apportioned subject to the contingencies imposed by the will, has no application.

3. Deeds and Conveyances — Possibilities — Contingent Interests— Assignments — Equitable Interests — Statute of Uses.

While mere possibilities cannot be transferred at law, execu-tory devisees and contingent remainders are not considered as bare possibilities, but as certain interests and estates, and as such may be conveyed. In this suit, the question of whether the assignment passed a legal or equitable inter.est is immaterial, as the defendant set out the essential facts and relied upon them as a defense.

■Appeal by plaintiff from Daniels, J., at Fall Term, 1912, of VaNCE.

This action was brought to recover certain land and personal property by the plaintiff, Clara Beacom, against the defendant, James Amos. The property in' controversy was originally owned by Robert Beacom, who was the father of Hamilton Beacom,-Clara Beacom, Mary J. Beacom, and Annie Beacom. Mary J. Beacom married James Amos and predeceased her father, leaving her surviving her husband and the following children: Maggie Amos, Mary Amos, Myrtle Amos, Annie E. Amos, and Clara B. Amos. The husband, James Amos, after the death of Robert Beacom, married his wife’s sister, Annie Beacom, who died 28 April, 1905, without issue, leaving a will in which she devised and bequeathed her entire estate, real and personal, to her husband, James Amos. Robert Beacom died in 1898, leaving a will in which he devised and bequeathed all of his property to his wife for her life, and subject to her life estate; to Hamilton Beacom he devised a tract of land containing 250 acres, upon the following condition: “To have and to hold the same unto him, the said Hamilton Beacom, and his heirs and assigns forever: Provided, however, if the said Hamilton Bea-com shall die without issue living, then and in that event I give *359and devise said land above described to my daughters, Clara and Annie Beacom, and their heirs and assigns: Providedi further, that in case the said Clara and Annie shall die without issue, then I give and devise said land to the children of James Amos and my daughter Mary J. Amos (the last now dead) who may be living at the time of the death of my son and daughters as above set forth, in fee simple, to be equally divided between them.” And also subject to his wife’s life estate and the devise to Hamilton Beacom, he devised and bequeathed to Clara Bea-com and Annie Beacom the rest and residue of his property, “to have and to hold the same unto them and their heirs, executors, administrators, and assigns absolutely and in fee simple, share and share alike: Provided, however, if either the said Clara or Annie Beacom should die without issue, then the survivor thereof shall take, have, and hold said property absolutely and in fee simple. Referring to the said property above bequeathed and devised to my said daughters Clara and Annie Beacom, it is my will that in the event of the marriage of either of them, then the real estate and such personal property as then may be shall at once be sold by them and the proceeds thereof equally divided between them and to be held by them as above set forth.” Robert Beacom had añ interest in the estate of J. E. Beacom, deceased, and also in the copartnership of Beacom Brothers, the business of which concern was continued by Hamilton Bea-com, as executor of John E. Beacom, after his death, until 11 May, 1900. It further appears that Mary Beacom, widow of Robert Beacom, left a will, by which she bequeathed her interest in the copartnership of Beacom Brothers to her son, Hamilton Beacom. The case shows that a dispute arose between the children of Robert Beacom, who were also his devisees and legatees, as to their rights and interests in his estate, and as to the settlement of his affairs, especially the business of the firm of Beacom Brothers, and this controversy between them engendered much bitter feeling and some acrimony, when by the kind intercession and tactful efforts of their able attorney and friend, Mr. A. C. Zollicoffer, these conflicting claims and interests were harmonized and adjusted upon terms fully satisfactory to all the parties, and on that day, 11 May, 1900, in order to carry out *360tbeir agreement and to finally settle all matters of disagreement between them, they executed several deeds, conveying and transferring to each other definite and absolute interests in the property described by them in the said deeds, which were of the following description and character:

First. A deed from the plaintiff, Clara Beacom, to her sister, Annie Amos, reciting the terms of Robert Beacom’s will and, further, the wish of the parties to convey to each other certain parts of the property devised to them, so that they might hold the same in severalty, absolutely and in fee simple, free from any claims therein of the one party against the other, the part so definitely described and conveyed. The said Clara Beacom then by deed conveyed to Annie Amos, “in fee simple and absolutely forever,” certain tracts of land therein described, and certain articles of personal property, which is the property now in dispute.

Second. On the same day and at the same time, James Amos and wife, Annie, executed their deed conveying to Clara Bea-com, with the same recitals and the same estate, certain land therein described. The last two deeds described the land devised by their father to Clara and Annie Amos.

Third. On the same day and at the same time, all of the interested parties, heirs, devisees, and legatees of Robert Beacom, that is, Hamilton Beacom, Clara Beacom, James Amos and wife, Annie Amos, Sallie Beacom, parties of the first part, and James, as trustee of his children (whose names are therein set forth), party of the second part,, entered into a deed of settlement as to all their interests and business affairs, the said deed having the following recital: “Whereas, heretofore, during the year 1897, John E. Beacom, late of the county of Yanee, died, leaving a last will and testament in which he named Hamilton Beacom as his executor; and whereas at the time of his death his estate consisted mainly of the mercantile business in the town of Henderson, N. C., conducted under the name of Beacom Brothers, and the same has not been settled, but the business has been continued until the present time by Hamilton Beacom as executor; and whereas the parties of the first part were interested in said estate as.creditors and legatees and heirs at law; *361and whereas Robert Beacom and bis wife, Mary Beacom, who were also interested in said estate, are dead, leaving wills in. wbicb the parties of the first part are interested as legatees and devisees; and whereas it is the desire of the parties of the first part that there shall be a full, final, and complete settlement of the estates of J. E. Beacom, Robert Beacom, and Mary Beacom among and between the parties of the first part; and whereas a full, final, and complete settlement of the said estate has been agreed on by and between the parties, and as a part of the consideration of the settlement it has been agreed that the land hereinafter described shall be conveyed to James Amos, trustee for his children, Maggie Amos, Mary Amos, Myrtle Amos, Annie E. Amos, Clara B. Amos, in fee simple; and whereas it is the desire of the parties of the first part to carry out said agreement and settlement: Now, therefore, in consideration of the premises and other divers good and valuable considerations, and the sum of $10 to them in hand paid,” and so forth. The parties of the first part then conveyed to James Amos, as trustee of his children (by his wife, Mary Amos, formerly Mary Bea-com, in fee simple absolute) “all their right, title, and interest” in and to the tract or parcel of land containing 250 acres, which was devised by Robert Beacom, subject to the life estate of his wife, Mary Beacom, to Hamilton Beacom, with contingent limitations over as hereinbefore stated. Mr. A. C. Zolli-coffer testified, in substance, that he was the attorney for the respective parties, and helped them to adjust their difficulties and differences, ahd advised them in the matter. The settlement was intended to be a full and final settlement “of everything between the parties.” It related to and embraced the adjustment of the estates of Robert Beacom’s three deceased sons, who had successively conducted the mercantile business under the firm name of Beacom Brothers; the settlement of Robert Beacom’s estate and of the estate of his widow, Mary Beacom. That Amos, in right of his two wives, was entitled to two shares in the store or business of Beacom Brothers, and Robert Bea-com’s estate to one share. He wrote all the deeds and the agreement and also the wills. . They were written and executed at the same time, as parts of one and the same transaction, and *362were intended and considered as a final and complete settlement. At first, in order to make tbe settlement, a sale of tbe property was proposed, but finally they decided that it should be divided in specie, as was done, Clara Beacom, tbe plaintiff, baying tbe choice of tbe parcels and taking the farm, which was considered tbe more valuable. Hamilton Beacom testified that tbe consideration of bis joinder in tbe deed to James Amos, as trustee of bis children, was tbe interest of Amos’ wives in tbe store and tbe sum of $500, which be paid. He bad nothing to do with arranging tbe terms of settlement as between Clara Beacom and Annie Amos. That was done between themselves. In this connection it may be stated that a deed of settlement, dated 11 May, 1900, between Clara Beacom, James Amos, and wife, Annie Amos, of tbe first part, and Hamilton Beacom of the second part, was in evidence. It recites their respective interests in tbe estates of John E. Beacom and in tbe business and effects of Beacom Brothers, and tbe unsettled condition of those estates, and further recites tbe desire of tbe parties interested to have “a full and final settlement between themselves of their respective interests, as creditors, legatees, and devisees of the estates, and under tbe wills of John E., Robert and Mary Bea-com, and further, that a full and final settlement bad been agreed upon, and then states the terms of settlement, viz.: that Hamilton Beacom is to provide for tbe payment of tbe claims of James Amos, representing bis two wives, against tbe estate of J. E. Beacom, amounting to $1,646.15, the claim of Clara Beacom against such estate, and all other debts of tbe same, and in consideration of bis having complied with tbe agreement on bis part, they convey to him all their interest in tbe estate of J. E. Beacom and in tbe mercantile business of Beacom Brothers, including their interest in the assets and property and in tbe good-will of tbe firm of Beacom Brothers, and their interest in tbe estate of Mary Beacom, and any claim or share Robert Beacom may have bad in tbe estate of J. E. Beacom or in tbe firm of Beacom Brothers, with habendum to him, tbe said Hamilton Beacom, bis heirs, executors, administrators and assigns forever.” This deed was a part of tbe general settlement.

*363It was admitted that plaintiff could not recover, as to the personalty, as she was barred by the statute of limitations, and the only property in dispute, therefore, is the two lots in Henderson, N. C., which are particularly described in the deed of Clara Beacom to Annie Amos, dated 11 May, 1900.

The court charged the jury that the legal effect of the deed from the plaintiff to Mrs. Annie Amos was to pass the title in fee, and then told the jury, if they believed the evidence, their answers to the issues should be in favor of the defendant. The jury returned the following verdict:

1. Is the plaintiff owner and entitled to the possession of the lands described in the complaint? Answer: No.

2. Is plaintiff owner and entitled to the personal property described in the complaint? Answer: No.

3. "What is the annual.rental value of said lands? Answer: $250.

Judgment was entered thereon for the defendant, and the plaintiff appealed.

T. T. Hichs for plaintiff.

J. G. Kittrell and T. M. Pittman for defendant.

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 *364an 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 *365wbicb 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 *366therein 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 *367mere 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 *368the 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.