
    Case 121 — EQUITY
    July 2, 1880.
    
      W. T. Davis v. Benj. Hardin, &c.
    
    APPEAL FROM MERCER CIRCUIT COURT.
    THIS OPINION'1 IS PUBLISHED BY ORDER OF COURT.
    1. The object of construing instruments is to attain the intention of the- . party executing them, and for this purpose technical rules need not be observed. While the intention must be deduced from the words 1 of the writing, these words maybe read in the light of attending circumstances and the relation of the parties.
    2. When a husband makes provision for his wife and children, he should be presumed to do so with the intention to give the whole to the wife for life, remainder to the.children, unless a contrary intention is manifest from the terms of the provision, or from the facts and circumstances attending’it.
    3. A deed from husband tó trustee for the benefit of his wife and child, and children thereafter born, creates a life-estate in the wife, with remainder in fee to the children.
    PHIL. B. THOMPSON, Jr., THOMAS C. BELL, and C. A. & P. W. HARDIN FOR APPELLANT.
    Under deed by husband to a trustee for wife and children, they all take 1 as joint tenants. (Powell v. Powell, 5 Bush, 620; Gill’s heirs v. Lyman’s heirs, 11 Bush, 231; 11 B. M., 139, 231; 3 B. M., 404; 6 Bush, 523; Comyn’s Digest, title Fait D.; Modern Reports, 116; Gen. Stat., page 586, sec. 13; Rev. Stat., vol. 2, p. 22; Curtesy — see Gen. Stat., sec. 14, p. 586; Gen. Stat., p. 527, sec. 1; Morehead & Brown’s Statutes, vol. 1, page 444; Statute 27, Henry VIII; Va. Stat., 1785; ICy. Stat., 1796; 4 J. J. M., 66.)
    PHIL. B. THOMPSON, Sr., and O. S. POSTON for appellees.
    Deed by husband to trustee for benefit of his wife and children creates a life-estate in wife, with remainder to children. (Webb & Harris v. Holmes, 3 B. M., 404; Foster v. Shreve, 6 Bush, 523; McCord’s trustee v. Bouher & Palmer, 6 Dana, 261; Turman v. White, 14 B. M., 576; McCann v. Letcher, 8 B. M., p. 320; Thompson v. Thompson, 2 B. M.; 1 Dana, 243; Payne v. Payne, 11 B. M., 231; General Statutes, p. 386, secs. 13 and 14; Rev. Stat., vol. 2, p. 228.)
    The conveyance construed by the court in this case recites tbat it is “between David W.- Jones of the first part and .Mary E. Jcines and Wm. P. Jones, infant child of Mary E.. Jones, of the second part;” also, that “the said Thompson holds the legal title to the said property in trust for the said. Mary E. Jones and Wm. P. Jones, and any other child or children of her begotten by the said David W. Jones. Said property hereby conveyed is not to be subject to any debt or debts that the said David W. Jones or said Mary E. Jones shall or may hereafter create.”
    The property conveyed was an undivided third of about. 272 acres of land and some personalty. Bettie Hardin, one of the appellees, was the wife of Benj. Hardin and a daughter of David W. Jones and Mary E. Jones, and she was born. February 5, 1857. . The conveyance was made April 21st,, 1856. Wm. P. Jones died in January, 1857.
   JUDGE GOFER

delivered tiie opinion of tiie court.

The object of all construction is to discover and effectuate the intention of the person whose writing is to be 'construed, and while technical rules may aid in many cases in accomplishing the result sought, they are not to be followed when the court is satisfied, from an examination of the instrument, that to follow the rule is to defeat the intention. (Turman v. White, 14 B. Mon., 576.)

And while the court must deduce the intention- from the-words of the instrument, those words may be read in the light of attending circumstances and the relation of the parties.

A father making provision for his child and that child’s children, may well be supposed to have intended them to take jointly. They are all of his blood, and the natural objects of his bounty; but when a husband makes a con-veyance to his wife and their children, there is less reason to suppose that he intended they should take as joint ten•ants, whereby his bounty may, by her death,- pass into the .hands of a stranger, even as against himself.

No doubt Jones desired and intended that his wife should ■enjoy the property equally with their children, but it would be unnatural to suppose that he intended to invest her with an estate which might pass from her to strangers to his blood. This case serves to illustrate'the utter unreasonableness of applying to every deed or will the same rule of .construction with a view to ascertain the intention of the ■grantor.

The record shows that, soon after the deed was made, the ;grantor and his wife separated, and were divorced; that each .subsequently married again and died, leaving a child of the second marriage surviving.

If we apply to this case the rule announced in Cessna v. Cessna and Gill’s heirs v. Logan, 11 B. M., p. 231, the result will be that the bounty of the grantor will be entirely ■diverted from his family and blood, and the child of his wife’s second marriage, will receive an interest in the property, while his own child will be excluded.

It would be far more reasonable to' suppose he intended to give his wife, a life-estate, remainder to their children, as was held in Foster v. Shreve, and Webb v. Holmes. The ■deed provided for the enjoyment of the use of the property by the grantor and his wife, unless the trustee should take possession of it, and in that case that he should pay the ■entire rent and profits to the wife, thus showing that it was not his purpose to make present provision for the child then in being, or those that should be thereafter born. ' His ■only child was then an infant of tender years, and this, also, conduces to show that he did not intend it should take a present joint interest with the mother.

None of the cases referred to by counsel for appellant are ■of that character, except the case of Powell v. Powell. We have examined the deed construed in that case, and find that, like the deed -in Webb v. Holmes, it was a deed inter parties between Colvin, of the one part, and’ Mrs. Powell of the other. It was held in Webb v. Holmes and Foster v. Shreve that, under such a deed, the wife took only a life-estate, and it would have been so held in the Powell case, 310 doubt, if the question had been made, and the attention of the court had been called to the former case; but the child claimed only one half of the estate, and the case of Webb v. Holmes does not appear to have been cited.

That it was not intended to overrule Webb v. Holmes is •shown not only by the fact that that case was not mentioned, but by the further fact that Foster v. Shreve was decided afterward and approved, and followed Webb v. Holmes.

Judgment affirmed.  