
    Martin, as Administrator, v. Jones et al.
    
      Deed of conveyance — To A. J. “and Ms children after Mm” — Habendum to A. J. “and Ms heirs forever” — A conveyance in fee simple.
    
    A conveyance to A. J. “and his children after him” with habendum to A. J. “and his heirs forever,” is a conveyance to A. J. in fee simple, the granting clause and the habendum not being irreconcilably repugnant.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Belmont county.
    Susanna J. Price, mother of Abner Jones, on the 23rd day of September, 1881, made a deed as follows:
    “Know all men by these presents, that I, Susanna J. Price, in the consideration of the sum of three hundred dollars in hand paid by Abner Jones do bargain, sell, and convey unto the said Abner Jones and his children after him the following premises situate in the county of Belmont and state of Ohio, viz., being a part of section twenty-three (23), township No. seven (7), and range No. five (5), and being lot No. sixteen and No. seventeen on the town plat of the village of Fairmount.
    
      To have and to hold said premises with the appurtenances thereunto the said Abner Jones and his heirs forever, and the said Susanna J. Price for herself and heirs covenant with the said Abner Jones and heirs that she is lawfully seized of the premises, and that the premises are free and clear from all incumbrances Avhatsoever and that she will warrant and defend the same against the lawful claims of all persons whomsoever. In testimony whereof I hereunto set my hand and seal this 23d day of September, A. D., one thousand eight Hundred and eighty-one.”
    Abner Jones went into possession of the property thus conveyed and held possession until his death.
    • His administrator filed a petition in the probate court to sell the said real estate, to pay debts of Abner Jones. The children of Abner Jones answered, setting out the deed, denying that Abner Jones was seized of said real estate in fee simple, and claiming that he had only a life estate Avith remainder in fee to his children. A demurrer to the answer, by the plaintiff, was overruled by the probate court and petition dismissed. The judgment of the probate court was reversed by the common pleas court, and the circuit court reversed the judgment of the common pleas.
    
      Petty & Grew, for plaintiff in error.
    We maintain that the deed from Susanna Price to Abner Jones conveyed to said Abner Jones an estate in fee simple in the real estate described in said deed. And that in the granting clause which is “do bargain, sell and convey unto the said Abner Jones and his children after him,” the words “his children after him” are words of description merely, and that by the use of such words it may have been intended to convey a fee simple estate or an estate for life.
    
      It being doubtful from looking at the granting clause alone, what estate was intended to be and was granted, we must look at the deed entire and especially at the habendum ; the office of which is to deter-, mine the estate granted, or to lessen, enlarge, explain or qualify, but not totally contradict or be requgnant to the estate granted in the premises. 2 Bk., Blackstone, 297 and 298; 2 Waits, A. and D., 497; Brown v. Manter, 53 Am. Dec., 223; 1 Devlin, sec. 213.
    And where the language of the deed will admit of two constructions the one less favorable to the grantor is to be adopted. 2 Devlin on Deeds, sec. 848.
    One of the offices of the habendum is to enlarge the estate granted in the premises. Chaffee v. Dodge, 2 Root, 205; Tyler v. Moore, 42 Pa., 386.
    We think the habendum in this case performed its office, that is, it being doubtful what estate was granted in the premises (whether an estate for life or in fee simple), by looking at the habendum, we see defined the estate as a fee simple estate. It has been claimed in this case that the habendum is not an essential part of the deed. Chancellor Kent and other law writers say the same, but the reason given by them all is that the granting clause in modern conveyancing very often, and we may say nearly always, performs the office of the habendum, so (that the habendum only becomes an essential part of the deed in such cases as the one at bar, where the granting clause fails to determine the particular estate granted. 3 Washb. K. P., 372 (3rd Ed.) ; Blair v. Osburn, 84 N. C., 417; 2 Waits A. and D., 497 et seq.
    
    But admitting for the purpose of argument the claim of the defendants in error, that the granting clause conveys .merely a life estate to the said Abner Jones and the fee to his children; yet by reason of the habendum which is “to have and to hold said premises with the appurtenances thereunto, unto the said Abner Jones and his heirs forever,” the estate granted in the premises to said Abner Jones is enlarged into an estate in fee simple, for this is the exact purpose, object, and office of the habendum. 2 Bk. Blackstone, 297; 3 Washb. R. P., 372, Sec. 642; Sterns v. Parmer, 10 Met., 52; Berry v. Billings (44 Me., 416), 69 Am. Dec., 107; Berridge v. Glassey, 56 Am. Rep., 323; Jamaica Pond Corp. v. Chandler, 9 Allen, 168; McLeod v. Terrant, 20 L. R. A., 846.
    Suppose it to be conceded that the estate granted in the premises was uncertain and indefinite, would it be claimed for a moment, in this instance, that you could not go to the habendum to further determine the estate granted? And if you go to the habendum in the one case, you most certainly can in the other. For you may always look at the habendum for the purpose of ascertaining the intention of the grantor. And in construing the deed, the habendum is to be tested by the rule whether it can be construed so as to stand with the premises, or is so repugnant as to be irreconcilable with the latter.
    In the one case it lessens, enlarges, or explains the premises, and in the other is to be rejected. In the case at bar we most certainly think it enlarges. 3 Washb. R. P., page 374 (3rd Ed.) ; 3 Washb. R. P., 436; Flagg v. Eames (40 B. E., 23), 94 Am. Dec., 363; Barnett v. Barnett, 104 Cal., 298.
    It is not necessary, in order to convey an estate in fee simple that the word “heirs” appear in the premises of the deed, but it is sufficient if it appear in the habendum, the office of which is to define the grantee’s estate. Lancaster Bank v. Myley, 13 Pa., 544; Rines v. Mansfield, 9 S. W. Rep., 798.
    
      
      William E. Patterson and John Pollock, for defendants in error.
    If the premises and habendum are repugnant, which should prevail? It is held by all the rules of construction that in case of repugnancy between the two, the premises should govern.
    In a deed, if there be two clauses so repugnant to each other that they cannot stand together, the first is held to prevail over the last. 3 Washburn on Real Property, 398 (4th Ed.); 2 Blackstone, 381; Ball v. Foreman, 37 Ohio St., 132.
    The habendum is ineffectual to divest an estate already granted by the premises. By the latter, in the deed in question, an estate is granted to the “children” of Abner Jones, and the habendum cannot divest them of this estate. 4 Kent. Com., 468; Hafner v. Irwin, 34 Am. Dec., 390; Budd v. Brooke, 43 Am. Dec., 321.
    The habendum cannot serve to change the grantees or their interests as named in premises unless perhaps express reference is made in the premises to the intended operation of the habendum. Tyler v. Moore, 42 Pa. St., 374; Tiedeman on Real Prop., Sec. 826.
    The test to be applied to any habendum in a deed is whether it can be construed so as to stand with the premises or is so repugnant in its operation as to be irreconcilable with the latter. In one case, it. limits and explains the grant, in the other it is rejected as no effect. 3 Washburn on Real Property, 439 (2nd Ed.).
    It has frequently been held that where a specific limitation is contained in the premises, and is followed by a more general limitation in the habendum, that the latter limitation cannot enlarge the estate granted by the premises. Bricker v. Bricker, 11 Ohio St., 240; Tiedeman on Real Property, Sec. 844; 5 Am. & Eng. Ency. (1st Ed.), 457, n. 2.
    The object of construction is to ascertain the intent of the parties, and when this intent is discovered, it governs. Every deed is to be so construed as, if possible, to give effect to the intention of the parties, and endeavor should be made to give every part of the deed meaning and effect. Wolfe v. Scarborough, 2 Ohio St., 361; White v. Sayre, 2 Ohio St., 113; Jackson v. Meyers, 3 Johns, 395; Sheppard’s Touchstone, page 86, rule 4.
    To give to the deed the construction claimed by plaintiff in error, you must strike out of the grant, and ignore the words “And his children after him.” This does violence to an essential part of the deed. The better construction, and the one intended by the parties to the deed, would be to read the habendum as though it were only an addition to the grant, or in other words, to construe the habendum as though it read, “to Abner Jones and his children after him and their heirs forever.” The word “heirs” in the habendum would then give force and effect to all the provisions of the grant. No other construction can be given it, and yet carry out the proper intention of the deed.
    That we may look to the surrounding circumstances to aid us in determining the true construction of a deed, we have the authority of Bobo v. Wolf, 18 Ohio St., 415.
    It is true that the habendum does not contain the word “children” or any words that would show of themselves that only a life estate in Abner Jones was intended. In so far as habendum does not agree with granting clause, the former is ineffective and invalid. Ball v. Foreman, 37 Ohio St., 132; Flagg v. Eames, 40 Vt., 16.
    
      A strict construction of an instrument is often unjust and is to be avoided. Irwin’s Heirs v. Long-worth, 20 Ohio St., 581; Summers Admr. v. Williams, 8 Mass., 174; Sheppard’s Touchstone, page 86, 87, rules 1 to 4; Thornton v. Mulquinne, 79 Am. Dec., 548; Bender v. Fromberger, 4 Dall., 436; Foxcroft v. Mallett, 4 How., 353.
    Counsel for plaintiff in error maintain that there is no estate in fee granted to “the children” in premises because the word “heirs” is omitted. There are exceptional cases where an estate in fee may be granted without the word “heirs” being used, when the intent of the grantor is plain. Brown v. National Bank, 44 Ohio St., 269.
   By the Court :

The intention of the parties to a deed should be gathered, if possible, from the whole instrument; and no part of the deed should be rejected as repugnant to the granting clause, unless the repugnancy is irreconcilable. In this case, the granting clause and the habendum are not inconsistent, and are readily reconcilable. Whether the word “children” in the granting clause and the word “heirs” in the habendum, are taken in the same sense, or whether the word “heirs” be regarded as broader than, and inclusive of, the word “children,” there is no repugnancy. We take it that the habendum makes definite in a technical sense -the granting clause; and that the two clauses, when taken together, manifest an intention to convey to the grantee and his heirs, an estate in fee simple. The parties to this deed regarded the phrase “and his children after him,” in the granting clause, as the exact equivalent of the phrase “and his heirs forever,” in the habendum.

Judgment of the Circuit Court reversed and the judgment of the Common Pleas affirmed.  