The points raised by the plaintiff's third, fourth and fifth grounds of appeal cannot be considered by us, as there is no copy of the pleadings set out in the "Case," and we are not at liberty to assume that the circuit judge went beyond the scope of the pleadings in rendering his decree. He was bound by the 55th rule of the Circuit Court to make due provision for the payment of debts before ordering the partition asked for; and the counsel for the plaintiff is in error in supposing that it did not appear that the personal estate was insufficient for the payment of the debts, for the referee distinctly reported that the debts of Mary Hammett "amounted to very nearly the value of her whole estate."
The judgment of this court is that the judgment of the Circuit Court be affirmed.1
e. The fee-tail. Shope, J., in
122 Illinois, 317. - 1887.
It is contended by defendant in error, that by the deed of August 3, 1883, from Humphrey and wife to " Maria Anna Lehndorf and her heirs by her present husband, Henry Lehndorf," Mrs. Lehndorf took a fee simple estate in the lands conveyed, while plaintiffs in error contend that she thereby took a life estate only, with remainder in fee to her children by said Henry Lehndorf.
The deed being statutory in form, contains no habendum limiting or defining the estate taken by Mrs. Lehndorf, and although the deed must be held equivalent to one containing full covenants, Elder v. Derby, 98 111. 228, it is manifest that the estate granted would not be enlarged or restricted thereby. Such covenants are an assurance of the title granted to the grantees, whomsoever they may be. If Mrs. Lehndorf took the fee, the covenants assure that estate to her; if she takes an estate in tail, the covenantor warrants to her a life estate, and the remainder in fee to whomever would take upon determination of her estate. Therefore, as said by counsel for defendant in error, the determination of the question depends upon a construction of the granting clause of the deed, which is, that the grantors, in consideration, etc., "convey and warrant to Maria Anna
1 In England the statute de donis conditionalibus (West. II, 1285) compelled the courts to construe such estates as that above "according to the form of the gift," and the resulting estate was known as an "estate-tail." See Lehndorf v. Cope, infra. This statute was understood to be in force in the other orignal States, but not in South Carolina. See Gray's "Rules Against Perpetuities," §§ 18 and 14, for the general principles and for citation of other South Carolina cases. - Ed.
Lehndorf, and her heirs by her present husband, Henry Lehndorf, of," etc., the lands in controversy.
The legitimate purpose of all construction of a contract or other instrument in writing, is, to ascertain the intention of the party or parties in making the same, and when this is determined, effect will be given thereto, unless to do so would violate some established rule of property. The nature and quantity of the interest granted by a deed are always to be ascertained from the instrument itself, and are to be determined by the court as a matter of law. The intention of the parties will control the court in construction of the deed, but it is the intention apparent and manifest in the instrument, construing each clause, word and term involved in the construction according to its legal import, and giving to each thus construed its legal effect. Washburn on Real Prop. 404; Bond v. Fay, 12 Allen, 88; Lippett v. Kelley, 46 Vt. 516; Price v. Sisson, 13 N. J. Eq. 178; Caldwell v. Fulton, 31 Pa. St. 489; Wager v. Wager, 1 S. & R. 374.
It cannot be presumed that the parties used words or terms in the conveyance without intending some meaning should be given them, or without an intent that the effect legitimately resulting from their use should follow; hence, if it can be done consistently with the rules of law, that construction will be adopted which will give effect to the instrument, and to each word and term employed, rejecting none as meaningless or repugnant.
We should, perhaps, first notice the contention of counsel for defendant in error, that by virtue of section 13 of the Conveyance act, (as there is here no express limitation upon the estate of Mrs. Lehndorf, and as no one can have heirs while living,) the words following the grant to her should be rejected, and the deed read as if to her only. This arises from a misapprehension of the statute. The evident purpose of the section referred to, was to change the rule of the common law, whereby, if a conveyance, etc., was made without words of inheritance, an estate for the life of the grantee only was created. The section is as follows:
' Sec. 13. Every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised, by construction or operation of law."
It is not necessary, as seems to be supposed, that to create a less estate than the fee, there should be expressed words of limitation, either under the statute or at common law. It is sufficient for that purpose if it appear, by necessary implication, that a less estate was granted. In an early case, Frogmorton v. Wharrey, 2 W. Black. 728, where there was a surrender of copyholds by R., who was seized in fee to M., his then intended wife, and the heirs of their two bodies, etc., Wilmot, C. J., delivering the opinion of the court for himself, Bathurst, Gould and Blackstone, JJ., after holding, on authority of Gossage v. Taylor, Styles 325, and Lane v. Pannel, 1 Roll. 438, that the children thus begotten took as purchasers and not as heirs, says, the only difference in the cases is, that in those cases " the wife had an express estate for life, and here not. But upon legal principles the cases are just alike. An estate ' to A., and the heirs of his body ' is the same as an estate ' to A. for life, remainder to the heirs of his body.' By operation of law, the added words created, in the case cited, in M. a life estate only, with remainder to the heirs of herself and R , as purchasers. So the grant "to A., and the heirs of his body," by operation of law creates an estate tail in A., remainder in tail. And this has been the uniform holding.