#### ERNEST WILLIAMS et al. v. PUSS WILLIAMS et al.

(Filed 6 March, 1918.)

1. Deeds and Conveyances — Intent—Formal Clauses.

A conveyance of land should he construed to effectuate the intent of the donor as gathered from the wording of the entire instrument, and the intent thus ascertained will control the meaning of a formal clause of the deed.

2. Same — Estates—Limitations—Children—Second Marriage.

The granting clause of a deed, to J. “for the term of his natural life, and after his death in remainder to his wife, if she survive him, for her natural life, then to the children of said J.”; and in the habendum, “to him and his wife their lives, and to their children,” are JETeld, when construed together, to confine the ulterior limitation, after the falling in of the life estates, to the children of X and his wife living at the time of the execution of the deed, to the exclusion of any interest of his second and later wife and the children of that marriage.

Appeal by plaintiffs from case agreed, heard at January Term, 1918, of Pitt.

. On 24 September, 1877, Thomas Williams and wife executed and delivered to their,son, James W. Williams, a certain deed, marked Exhibit “A” in the case agreed, for the lands described therein. The granting clause in said deed is as follows: “Do give, grant, convey, and confirm unto James W. Williams, for the term of his natural life, and after his' death in remainder to his wife, if she survives him, for her natural life, then to the children of the said James W. Williams, lawfully begotten in marriage, absolutely, and to their heirs.”

The habendum is as follows: “To have and to hold the same in manner aforesaid, to him and his wife their lives and to their children and their heirs in fee simple. We, the said Thomas Williams and wife, reserving for ourselves the use of the turpentine and tar on the said land; and we do further, for ourselves and our heirs, hereby warrant and defend the title hereby conveyed against the lawful claims of any and all persons whatsoever.”

*161Upon the execution of tbe deed the said James W. Williams and wife went into possession of tlie land. At the' time of the execution of the deed James W. Williams was living with his wife, and at said time they had the following children: Ernest Williams, L. E. Williams, Ella Williams, Jesse Williams, Maggie Williams, and Will Williams. On 21 March, 1885, the wife of the said James W. Williams died, leaving surviving her J ames W. Williams, her husband, and the aforesaid children.

After the death of the wife of James W. Williams, the mother of the plaintiffs, and while he (James W. Williams) was a widower, Thomas Williams, and wife, on 17 June, 1887, executed to the said James W. Williams the deed which is attached to the case and marked Exhibit “B,” the recitals of which are as follows :

“Whereas, Thomas Williams and wife, Mirny Williams, executed to James W. Williams, their son, for a valuable consideration, a deed for one-third interest in and to a tract of land situated in Pitt County, containing two hundred and fifty acres, more or less, said deed was dated on the 24th day of September, 1877, and duly recorded in the register’s office of Pitt County;

“And whereas, by error of the draftsman, it should have been three hundred acres of land, one-third of which to the said James Williams, and the said Thomas and wife Mimv now desiring to correct said deed so far as they are able, so as to convey and include a one-third undivided interest in the said three hundred acres of land as set forth in the deed of September 24, 1877:

“Now, therefore, this deed, made this 17th day of June, 1887, by Thomas Williams and wife, Mirny, to James W. Williams, all of the county and State aforesaid:

“Witnesseth, That for and in consideration of the above recited premises and the further consideration of the sum of one dollar to us in hand paid, the receipt of which is hereby acknowledged, hath bargained, sold and conveyed, and by these presents doth bargain, sell and convey unto James W. Williams for the term of his natural life, and after his death in remainder to his wife, if she survives him, for her natural life, then to the children of the said J ames W. Williams lawfully begotten in marriage, absolutely, and to their heirs in fee simple forever, an undivided one-third interest, part and estate in and to a tract of land situated in Pitt County and said State, and bounded as follows: (Here follows the description.)

“It being intended by this deed to convey with the above conditions and limitations, subject to the life estate in the turpentine and tar on the lands, which is hereby specially reserved unto the said Thomas and Mirny Williams, an undivided one-third interest in the above-described lands and the part assigned for the purposes of this deed, included in *162tbe following boundaries: Beginning at John S. Williams’ northeast comer line and running north, to wit: (Here follows the description.)

“To have and to hold the same in manner aforesaid to him and his wife their lives and to their children and their heirs in fee simple after the life estate above carried out to the said Thomas and Mirny Williams.”

After the execution of both the deeds, James'W. Williams remarried, to wit: On 25 October, 1888, his second wife being the defendant Puss Williams. There was born of the second marriage the following children: 0. B. Williams, Marshall Williams, Thad Williams and Daisy Williams, defendants in this action. On 27 May, 1917, James W. Williams died,- leaving surviving him the following children by his first marriage: Ernest Williams, L. F. Williams, Ella Williams Moore, Maggie Williams Sutton, and Will Williams, together with five grandchildren, the children of Jesse Williams, a child of the first marriage, who died since the death of his mother; and the following children by his second marriage, to wit': O. B. Williams, Marshall Williams, Thad Williams, and Daisy Williams; and also his widow, the said Puss Williams, the second wife.

Maggie Sutton and Will Williams, two of the children by the first marriage, by good and sufficient deeds have conveyed whatever interest they have in and to the lands described to the plaintiff Ernest Williams. Thad Williams, one of the children of the second marriage, by good and sufficient deed, has conveyed to Ernest Williams any interest that he might have in and to said land.

The plaintiffs, who are the children of the first marriage, upon the facts agreed, the substance of which is above set out, contended that upon the death of the said James W. Williams they became the owners in fee and entitled to the immediate possession of said land, free of the claims of the second wife and of the second children.

The defendants, the second children, contended that they are entitled to an equal share in said lands with the plaintiffs. The defendant Puss Williams, the widow by the second marriage, contending that she, under' and by virtue of the deeds aforesaid, is the owner of the life estate in and to said lands, and that the children of the first and second marriages share equally, subject to said life estate.

The court, upon the foregoing facts and contentions, held that, under and by virtue of the deeds from Thomas Williams and wife to James W. Williams set out in the case agreed as exhibits “A” and “B,” the defendant Puss Williams, wife by the second marriage and widow of James W. Williams, was the owner of a life estate in and to said land, and that the children by the first and second marriages own the remainder in fee as tenants in common, and rendered judgment accordingly, from which *163judgment the plaintiffs, children by the first marriage, appealed, assigning as error that the court adjudged that they were not the sole owners in fee of the land in controversy.

Albion Dunn and Harry Skinner for plaintiffs.

D. M. Clark and F. M. Wooten for defendants.

Walker, J.,

after stating the ease: It is not at all difficult to construe the first deed if we are permitted to look at the entire instrument and to consider one part of it with another, so that the intention of its maker may be determined by all that he has said, and not only by a part thereof and without special regard to the formal arrangement. This Court has repeatedly held that this should be done in order to extract from the language the true meaning of him who used it. Campbell v. McArthur, 9 N. C., 38; Kea v. Robeson, 40 N. C., 373; Rowland v. Rowland, 93 N. C., 214; Gudger v. White, 141 N. C., 507; Triplett v. Williams, 149 N. C., 394; Beacon v. Amos, 161 N. C., 357; Brown v. Brown, 168 N. C., 4; Gold Mining Co. v. Lumber Co., 170 N. C., 273.

We said in Brown v. Brown, supra: “We have well-nigh discarded the technical rule of the common law by which a deed was construed and under which undue prominence and effect had been given to its formal parts and their position in the instrument to the sacrifice of the real intention of the grantor, and, further, by which too much importance was attached to the use of technical language in which the meaning and intention were clothed, all of which resulted in defeating the purpose for which the deed was executed. We have gradually enlarged our view and liberalized our methods, which before were somewhat narrow and contracted, and now we seek after the intention by putting a construction upon the deed as a whole, and not paying too much attention to technical forms of expression which tended to conceal the true meaning. We now turn on all the light, while formerly it was to some extent shut out, thereby hiding or obscuring the grantor’s meaning and disappointing the intention which, of course,. is thwarting the very object of all legal construction. With the evident purpose of doing justice by revealing and not concealing the truth behind ancient and threadbare forms, we have held that all parts of a deed should be given due force and effect. Words deliberately put in a deed and inserted there for a distinct purpose are not to be lightly considered or arbitrarily thrust aside, the discovery of the intention of the parties being the first and main object in view; and when it is ascertained, nothing remains to be done but to execute it without excessive regard for merely technical inaccuracies or formal divisions of the deed. We have adhered to this rule, following the modern English doctrine from the earliest *164years of this Court and continuously to the present time, as will appear from our decisions,” citing the preceding cases and Featherstone v. Merrimon, 148 N. C., 199.

It was said by Chief Justice Taylor in Campbell v. McArthur, supra: “Words shall always operate according to the intention of the parties, if by law they may; and if they cannot operate in one form, they shall operate in that which by law shall effectuate the intention. This is the more just and rational mode of expounding a deed, for if the intention cannot be ascertained, the rigorous rule is resorted to, from the necessity of taking the deed most strongly against the grantor.”

And Chief Justice Ruffin said, at a later period, in Kea v. Robeson, supra: “Courts are always desirous of giving effect to instruments according to the intention of the parties, as far as the law will allow. It is so just and reasonable that it should be so that it has long grown into a maxim that favorable constructions are to be put on deeds; benigne faciendae sunt interpretationes chartarum, ut res magis valeat quam per eat. Hence, words, when it can be seen that the parties have so used them, may be received in a sense different from that which is proper to them; and the different parts of the instrument may be transposed in order to carry out the intent.”

It is clear, from a reading of this deed, giving to each part its proper weight and significance, what the parties intended as to who should take under it. We are required by the settled canon of construction so to interpret it as to ascertain and effectuate the intention of the parties. Their meaning, it is true, must be expressed in the instrument; but it is proper to seek for a rational purpose in the language and provisions of the deed and to construe it consistently with reason and common sense. If there is any doubt entertained as to the real intention, we should reject that interpretation which plainly leads to injustice and adopt that one which conforms more to the presumed meaning, because it does not produce unusual and unjust results. All this is subject, however, to the inflexible rule that the intention must be gathered from the entire instrument “after looking,” as the phrase is, “at the four corners of it.” See Real Estate Co. v. Bland, 152 N. C., 225; Puckett v. Morgan, 158 N. C., 344.

An effort should be made to give some meaning, and the correct one, to the deed, if possible. If the effort is doomed to failure by reason of uncertainty or repugnancy, so that we cannot ascertain the meaning by any fair rule of construction, or by reason of its ambiguity of expression, and we are unable to understand from the language of the deed who are the parties or what is the subject-matter, or if they be known, what estate is conveyed, or any other matter essential to its validity, the *165instrument, of necessity, must fail. Tbe subject is fully discussed in tbe foregoing cases.

In applying tbe principle we do not ignore altogether tbe ancient rules of law for tbe interpretation of deeds and other instruments, but we do not allow them to absolutely disappoint tbe clearly expressed intention. They are valuable aids in construction and are retained, and frequently resorted to, for tbe purpose of construction, where they do not defeat tbe very object for which they were adopted. Tbe rule, in one aspect of it, is well stated in 1 Devlin on Deeds, sec. 215, as follows: “It may be formulated as a rule that where it is impossible to determine from tbe deed and surrounding circumstances that tbe grantor intended tbe habendum to control, tbe granting words will govern, but if it clearly appears that it was tbe intention of tbe grantor to enlarge or restrict tbe granting clause by tbe habendum tbe latter must control.”

See Dodine v. Arthur, 91 Ky., 53, where it is said: “It is undoubtedly true that in case of repugnancy between tbe two, and it cannot be determined from tbe whole instrument with reasonable certainty that tbe grantor intended that tbe habendum should control, tbe conveying clause must, for tbe reason that words of conveyance are necessary to tbe passage of tbe title, and tbe habendum is not ordinarily an indispensable part of a deed. Hence, in tbe case above indicated, tbe conveyancing clause must control. But where it appears from tbe whole conveyance and attending circumstances that tbe grantor intended tbe habendum to enlarge, restrict, or impugn tbe conveying clause, the habendum must control. It is in such case to be considered as an addendum or proviso to tbe conveyancing clause, which, by a well-settled rule of construction, must control tbe conveying clause or premises even to tbe extent of destroying tbe effect of tbe same. This is so, because it is tbe last expression of tbe grantor as to tbe conveyance, which must control tbe preceding expression.”

See, also, Ratliffe v. Mars, 7 S. W., 395; Fogarty v. Stack, 8 S. W. Rep. (Tenn.), 846; Henderson v. Mack, 82 Ky., 379. And in Barnett v. Barnett, 104 Calif., 298, tbe Court states tbe rule with reference to a joint consideration of tbe premises and habendum of a deed, as follows: “For tbe purpose of ascertaining tbe intention, tbe entire instrument, tbe habendum as well as tbe premises, is to be considered, and if it appears from such consideration that tbe grantor intended by tbe haben-dum clause to restrict or limit tbe estate named in tbe granting clause, tbe habendum will prevail over tbe granting clause.” Moore v. Waco, 85 Texas, 206.

All parts of a deed should be given due force and effect. Doren v. Gillum, 136 Ind., 134. Tbe premises of a deed are often expressed in general terms, admitting of various explanations in a subsequent part *166of tbe deed. Such .explanations are usually found in tbe habendum. Carson v. McCaslin, 60 Ind., 334. Words deliberately put in a deed, and inserted there for a purpose, are not to be lightly considered, or arbitrarily tbrust aside. Mining Co. v. Becklenheimer, 102 Ind., 76. To discover tbe intention of tbe parties is tbe main object of all constructions. When tbe intention of tbe parties can be ascertained, nothing remains but to effectuate that intention. Elliott v. Jefferson, 133 N. C., 215; Salisbury v. Andrews, 19 Pick. (Mass.), 250; Walsh v. Hill, 38 Cal., 481.

Jones on Real Property, vol. 1, sec. 568, says: “Tbe inclination of many courts at tbe present day is to regard tbe whole instrument without reference to formal divisions. Tbe deed is so construed, if possible, as to give effect to all its provisions, and thus effectuate tbe intention of tbe parties. When an instrument is informal, tbe interest transferred by it depends not so much upon tbe words and phrases it contains as upon tbe intention of tbe parties as indicated by tbe whole instrument.”

We close this partial array of the authorities with tbe declaration of this Court, as to tbe soundness and scope of tbe rule, especially wben applied to a case like tbe present, as follows: “We concede all that is contended for as to tbe common law rule of construction, and that it has been followed in this State. But this doctrine, which regarded tbe granting clause and tbe babendum and tenendum as separate and independent portions of tbe same instrument, eách with its especial function, is becoming obsolete in this country, and a -more liberal and enlightened rule of construction obtains, which looks at the whole instrument without reference to formal divisions, in order to ascertain tbe intention of tbe parties, and does not permit antiquated technicalities to override tbe plainly expressed intention of tbe grantor, and does not regard as very material tbe part of tbe deed in which such intention is manifested. This is not only tbe decided trend of modern adjudication, but it is tbe legitimate and necessary result of legislation in this and other States.” Triplett v. Williams, 149 N. C., 396.

That case is especially controlling here, as it relates to a similar question of construction. There, in tbe premises, tbe land was granted “imto Margaret Greenwood and her heirs forever,” while this was tbe baben-dum: “To have and to hold tbe same, together with all privileges and appurtenances thereto belonging to herself, tbe said Margaret Greenwood, during her lifetime, and at her death said land is to be equally divided between tbe children of said Margaret Greenwood.” Tbe Court said that, at common law as decided in previous decisions of this Court,, tbe babendum and tenendum clause could not divest an estate granted in tbe premises (2 Blackstone’s Com., 298; 4 Kent. Com., 468; Hafner v. Irwin, 20 N. C., 570), and if tbe ancient rule was followed, and tecbni*167cal and formal parts of tbe deed, according to tbe functions assigned to each, were allowed to govern, that result would be reached, tbougb it apparently defeated tbe intention of tbe grantor, but that tbe modem rule was more liberal and, of course, more rational, and that we should not be restricted to any particular clause, but read tbe deed, as a whole, and then ascertain tbe real intention of tbe grantor.

We could not .find an authority more directly and fully in point than Triplett v. Williams, supra, as it permits us to construe tbe habendum with tbe premises, in order to declare what estate was conveyed .by the deed, and, by tbe same token, what parties were designated to take under it. In Gudger v. White, supra, we applied tbe same rule, following Kea v. Robeson, supra, and other previous decisions. Those cases are analogous and are all governed by tbe same enlightened rule of construction, which has been recognized by Courts, English and American, for far more than a century. Tbe Court said, in Triplett v. Williams, supra, at p. 397: “We can see no reason why tbe manifest intention of tbe grantor should be so carefully regarded in determining what property bis deed covers and so entirely disregard in determining what estate in that property tbe grantee shall take.”

If we apply this rule, now well settled, to tbe language of tbe deed in question, there can be no doubt that tbe grantors intended to convey tbe land to their son for tbe term of bis natural life remainder to bis then wife, if she survived him, for her life, and then over to tbe children of tbe first marriage, and that neither tbe widow of James W. Williams nor tbe children of tbe second marriage (her children by him) have any estate or interest in tbe same. Tbe habendum shows, with absolute certainty tbe intention to have been that tbe conveyance of tbe land should be restricted to tbe son, bis then wife, and their children, which necessarily excludes all others. Tbe grantors evidently meant, at tbe time they executed tbe deed, that tbe heirs of their son would be bis children by bis wife, who was then living, and their descendants.

Tbe judgment is reversed, and tbe ease remanded, with directions to enter judgment in tbe Superior Court according to this opinion and tbe agreement of tbe parties as appears in tbe record.

Reversed.