
    
      Eliza Murphy et al. vs. James Reynolds et al.
    
    Construction given to a very inartificial trust deed.
    
      Before Evans, J. at Edgefield, Spring Term, 1846.
    Trespass to try titles. The case depended on the construction of a trust deed, a copy of which is as follows:
    SOUTH CAROLINA, )
    Edgefield District. j
    Know all men by these presents, that I, John Wootan, of the district aforesaid, for and in consideration of the sum of one dollar, to me in hand paid, by Daniel Richardson, of the district aforesaid, the receipt whereof is hereby acknowledged, and also in consideration of the natural love and affection which the said John have and do bear for and unto the said Daniel Richardson, have bargained and sold, and by those presents do bargain and sell to the said Daniel Richardson, a certain tract of land, situate in Edge-field district, on the road leading from Augusta to Columbia, near the Old Wells, whereon I now live, supposed to be one hundred acres, more or less, and also one mare, and five head of cattle and their increase, one bed and furniture, for the use and purpose of my wife Elizabeth Woot-an, during her natural life or widowhood, should she be the longest liver, if not, the said land to continue in the possession of the said John Wootan during his natural life, then to belong to Joab Wootan, son of the above mentioned John Wootan, and should he die without any lawful heir, belong to Ferlina Wootan; the above mentioned mare and cattle, and feather bed and furniture, at the decease of the said Elizabeth Wootan, then to be the just right and property of James Runnells, her son ; the above mentioned land not to be sold, unless by the consent of each party, then the sale to be good to the purchaser thereof, under the limitation, to the use, and upon the trust hereinafter mentioned, to wit: It is hereby expressly declared and intended, that the before mentioned property shall be and remain jree and exempt from the liberty of being sold, or in any measure disposed by the said Daniel Richardson, for or on account of any debt or debts which he may heretofore contract, or any hereafter contracted ; but shall keep and hold the said property for the use and behalf of Elizabeth Wootan, the now wife of the said John Wootan, and shall not sell, convey, or dispose of the said property on any pretence whatever; and it is hereby agreed, and further understood, that the increase, profits, and all and singular the emoluments arising from, or to arise from said property before mentioned, shall be for the use, and under the direction of the said Elizabeth Wootan forever, and to her heirs forever; and I do hereby bargain, grant, sell and confirm, the above mentioned property, and all and every of the increase of the property thereof, of every part and parcel thereof, to the said Elizabeth Wootan, her heirs and executors and administrators or assigns, forever; and I, the said John Wootan, do hereby agree and declare the said property shall be the absolute right and property of the said Elizabeth Wootan and her heirs, forever. In witness whereof, I have hereunto set my hand and seal, this the second day of May, in the year of our Lord, one thousand eight hundred and eighteen, and in the forty-second year of the Independence of the United States of America.
    JOHN WOOTAN, [L. S.]
    
      Signed, sealed, and delivered, in the presence of
    
    Test — Peter Hare,
    her
    Elizabeth jxj Hearnden. mark
    The testimony showed that John Wootan, the grantor, died in 1823, that Joab Wootan, his son, died in 1837, and that Elizabeth, the wife of John, died in 1843. The plaintiffs claimed the land as .heirs at law of Joab, and their title depended on whether Joab took the estate after the death of John and Elizabeth. Under the instructions of his Honor, the jury found for the plaintiffs; and the defendants appealed, and now moved for a new trial, on the following grounds :
    1. That Joab Wootan having died in the life time of Elizabeth Wootan, took no interest whatever, under the deed in question.
    
      2. That by a proper construction of said deed, the land in question became the absolute estate of Elizabeth Woot-an, under whom the defendants claim.
    Griffin, for the motion.
    
      Carroll, contra.
   Curia, per

O’Neall, J,

In this case, the deed is certainly as inartificial an instrument as ever was presented to a Court of Justice, and it might be enough to say to the plaintiffs, we can give no sensible construction to it, and therefore you must fail. But however badly the deed is drawn, and however difficult of construction it may be, it is our duty to make sense out of it, if we can. Objections were suggested on the argument here, such as that Richardson, the trustee, only took a life estate, which might be fatal to the plaintiffs’ case, yet as no such objection is made by the grounds of appeal, we shall not consider it now.

The ground, that Joab Wootan died in the lifetime of Eliz. Wootan, and took no interest whatever, under the deed, will be an insuperable obstacle to the plaintiffs : for the deed, construed as it ought to be, gives, in the first instance, to Elizabeth Wootan, a separate estate during life, or widowhood, should she outlive her husband ; but if she did not outlive him, then the land was to remain for the use of the grantor during his life, and at his death to Joab, and if he should die without issue, remainder to Ferlina Wootan ; but the personal property, if the wife died before her husband, was, at her death, to be the property of her son, James Runnells. Reading the deed in this way, and stopping at the first part, it is plain that neither Joab nor his heirs can claim under the deed. That this is the true reading of the deed, I have no doubt: for any other arrangement of the words would lead to the. absurdity, that Joab should, at the death of Elizabeth Wootan, take the land, but if his father outlived her, he would get nothing at all. The true notion, is to read the words (“ if not, the said land to continue in the possession of the said John Wootan, during his natural life, then to belong to Joab Wootan, son of the above-mentioned John Wootan, and should he die without any lawful heir, belong to Ferlina Wootan ; the above-mentioned mare and cattle, and feather bed and furniture, at the decease of the said Elizabeth Wootan, then to be the just right and property of James Runnells, her son,”) as parenthetical. When so read, they are separated from the rest of the context, and make a case and state of things which need not be noticed, if it did not occur. As Elizabeth Wootan outlived her husband, the contingency on which the parenthesis was to come into the construction, has not happened. We might stop here. But this deed is so in artificially drawn, that I should be unwilling to say, the first part should control the subsequent. There are no technical parts in the deed before us. Hence, we may go on and give effect to the subsequent part. The first part, already adverted to, gives to Elizabeth, during life or widowhood, the estate; the deed however declares, inter alia, that the land should not be sold without- the consent of both parties (i. e. the husband and wife.) ■ This shows that during marriage it was to be the separate estate of the wife, subject to the husband in only one respect, to wit, the sale. Another clause' provides, that the increase, profits and emoluments shall be for the use and under the direction of the said Elizabeth. Then follows a clause declaring that the grantor grants, bargains, sells and confirms “the above-mentioned property, and all and every the increase of the property thereof, of every partandpar-cel thereof, to the said Elizabeth Wootan, her heirs and executors and administrators or assigns forever; and I, the said John Wootan, do hereby agree and declare the said property shall be the absolute right and property of the said Elizabeth Wootan and her heirs forever.” These last words plainly show that the whole property, real and personal, was to be to her and her heirs forever. The only rational supposition is, that the donor intended, if he outlived his wife, to regulate by the deed how. the real and personal property should go ; if he died before her, to leave all in her hands, to be disposed of as she thought proper. I know no other construction which can give any sort of effect to most of the words used in this singular paper.

But if it were true, that the estate in the land was given to Elizabeth Wootan during life or widowhood, then to Joab Wootan, still I do not think that his heirs would take any thing. For even in that point of view, his estate is purely contingent, and dying before his step-mother, his heirs would have no estate. I am aware the leaning of the courts is against making a remainder contingent, but yet the vesting or not, depends upon the intention. If it appear that the remainderman was intended to have no interest until the contingency happens, the remainder will not be construed to vest. Fearne on Remainders, 238. Here the remainderman’s estate depends upon the word “ then? By construction, the grant would be to Elizabeth for life or widowhood ; when she dies or marries, then the estate is granted to the remainderman. This makes it purely contingent.

But there is another view fatal to the plaintiffs. Joab’s estate under this deed, without words carrying the fee, was a mere life estate. His death in the life time of his step-mother, ended his estate, whether vested or expectant.

It is apparent, under these views, the plaintiffs can never recover; to end the litigation, the court think it best to non-suit the plaintiffs,- which is accordingly ordered.

Richardson, Wardlaw and Frost, JJ. concurred.

Evans, J.

I concur, on the ground that no estate of inheritance was given to Joab; dissent on all the other points.  