#### E. A. SHEPHARD and Wife v. E. L. HORTON et al.

(Filed 19 December, 1924.)

1. Deeds — Role in Shelley’s Case.

The application of the rule in Shelley’s ease will not be made to a deed for lands where there is no limitation in fee or in tail by way of remainder.

2. Same — Interpretation—Intent.

In construing a deed, effect is given to the intent of the grantor as gathered from its language, unless such intention is otherwise controlled by an arbitrary rule of law.

3. Same — Filled-in Forms.

Where a printed form of a deed has been used and the blank spaces filled in by the grantor, any conflict between the written and printed parts will be construed to effectuate the intention expressed by the former; and where the form thus used is for a fee-simple deed, and the written interlineations confine the estate to the lifetime of the grantee, leaving the printed relative parts in blank, the estate granted will be construed as for the life of the first taker, and the rule in Shelley’s case has no application.

Appeal by plaintiff from Webb, J., at August Term, 1924, of TaNCEv.

On 2 January, 1918, H. E. Horton executed and delivered to Victory Horton (now Victoria Horton Sbepbard, tbe feme plaintiff) a deed, tbe material parts of wbicb follow: “This deed. by Harriett E. Horton. to Victory Horton, witnessetb; Tbat tbe said Harriett E. Horton in consideration of one thousand dollars, to her paid by tbe party of tbe second part, ’tbe receipt of wbicb is hereby acknowledged, has bargained and sold, and by these presents does bargain, sell and convey to tbe said party of tbe second part during her natural life and.heirs and assigns, a certain tract or parcel of land, etc.”

“To have and to bold tbe aforesaid tract or parcel of land during ber natural life, with any and all privileges and appurtenances thereto belonging to tbe said Victory Horton, . heirs and assigns, to ber only use and behoof forever. And tbe said Harriett E. Horton covenant to and with tbe said Victoria Horton, heirs and assigns tbat she is seized of said premises in fee, and has a right to convey tbe same in fee simple, tbat tbe same are free from all encumbrances, and tbat she will warrant and defend tbe said title to tbe same against tbe claims of all persons whatsoever.”

Tbe deed was written on a printed blank form prepared for general use and tbe words “during ber natural life” were written by tbe draftsman. Tbe blank space in wbicb tbe word “ber, bis or their” is usually written before tbe word “heirs” was not filled.

*788Tbe trial judge held as a matter of law that the deed conveyed to the feme plaintiff only a life estate, and she thereupon took a nonsuit and appealed. The only question is whether there is error in this ruling.

B. W. Wilson for plaintiff.

Watson, Hudgins, Watson & Fonts for defendants.

Adams, J.

That the estate conveyed by the deed is a fee simple under the rule in Shelley’s case, as the plaintiff contends, is a proposition which in our opinion cannot be maintained. This is evident from the language of the rule itself: “Where a person takes an estate of freehold, legally or equitably, under a deed or will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of any interest of the same legal or equitable quality to his heirs, or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” 4 Kent Com. (215). It is also evident from the decisions. One of the prerequisites to the application of the rule is a limitation in fee or in tail by way of remainder, and such limitation does not appear in the conveyance. Reid v. Neal, 182 N. C., 192; Willis v. Trust Co., 183 N. C., 267; Hampton v. Griggs, 184 N. C., 13; Fields v. Rollins, 186 N. C., 221; Bank v. Dortch, 186 N. C., 510; Walker v. Butner, 187 N. C., 535.

In the construction of deeds the primary rule is to ascertain the real intention of the parties and then to give it effect, unless such intention is controlled by an arbitrary rule of law, as in Shelley's case. Bagwell v. Hines, 187 N. C., 690. This principle is fairly exemplified in Triplett v. Williams, 149 N. C., 394. The deed there presented for interpretation contained the words “Unto the grantee and her heirs forever,” followed, after the description, by the habendum, “To have and to hold unto the grantee during her lifetime, and at her death to be divided between her children.” Taking the whole deed into consideration with a view to effectuating the purpose of the grantors, the Court held that it was their intention to convey to the designated grantee only a life estate with a remainder over to her children. Antiquated technicalities, it was said, should not be permitted to override the intention expressed by the makers of the deed; and if there should be doubt as to their intention the court should adopt such construction as would accord with their presumed meaning. Among the many decisions upholding this principle the following may be cited. Ipock v. Gaskins, 161 N. C., 674; Guilford v. Porter, 167 N. C., 366; Gold Mining Co. v. Lumber Co., 170 N. C., 273; Revis v. Murphy, 172 N. C., 579; *789 Williams v. Williams, 175 N. C., 160; Willis v. Trust Co., supra; Berry v. Cedar Works, 184 N. C., 187; Seawell v. Hall, 185 N. C., 80.

Another principle to be considered is this: Ordinarily tbe written and printed parts of a deed are equally binding; but if they are inconsistent tbe writing will prevail over tbe printed form. Miller v. Mowers, 81 N. E. (Ill.), 420; De Paige v. Douglas, 136 S. W. (Mo.), 345; In re Brookfield, 176 N. Y., 138; 18 C. J., 258 (206). Tbe deed construed in tbe first of these cases contained tbe words, “Grant, bargain and sell unto tbe said party of tbe second part, her heirs and assigns, all tbe following described lands. . . . during her natural lifetime” followed by tbe habendum “To have and to bold tbe said premises . . . unto tbe said party of the second part, her heirs and assigns, during her natural lifetime.” Only tbe words in italics were written in tbe deed, tbe others being a part of tbe printed form; and it was'beld that tbe written words controlled tbe construction, that tbe grantee took a life estate, and that it was unnecessary to reform tbe deed.

Tbe facts in tbe case before us are almost identical. As to form, tbe deed was printed in part and written in part, tbe words “during her natural life” being in writing. On account of tbe inconsistency between tbe written and tbe printed parts tbe deed is ambiguous, and, as suggested, we must consider tbe intention. If tbe printed form bad not been used tbe words “heirs” would evidently have been omitted, and tbe intention of tbe parties would, no doubt, have been more clearly expressed.

If tbe foregoing principles be applied we must conclude that tbe deed vests in tbe grantee an estate for life and not in fee.

Tbe judgment is

Affirmed.