
    Sally Matteson, Respondent, v. Ella M. Johnston, Appellant.
    Fourth Department,
    July 12, 1910.
    Deed — reservation of life estate — construction by acts of "parties — equity — reformation of conveyance made without consideration.
    A covenant in a deed is to be construed according to the same rules-that govern the construction of other instruments. The intention of the parties is controlling if it can be fairly spelled out- from the instrument.
    Where, in a deed conveying lands as a gift, the grantee covenants "that her enjoyment of the premises shall be subject to a life interest in the grantor and after the delivery of the deed the grantor retains possession and receives the avails of the property without objection by the grantee, it is error to hold that there was no acceptance of the life estate by the grantor and that, she had a right to rescind the conveyance.
    The meaning of the clause reserving the life estate is made sufficiently clear by the practical construction put upon it by both parties.
    
      It seems, moreover, that if the covenant be ambiguous the deed may be reformed in equity to conform to the intention of the parties.
    The fact that the lands are conveyed as a gift does not prevent a reformation of the conveyance to conform to tire intention of the parties.
    Appeal by the defendant, Ella M. Johnston, from a judgment of the Supreme Court in favor of the plaintiff, entered -in the office of the clerk of the county of Erie -on the 12th day of November, 1909, upon the decision of the court rendered after a trial at the Erie Special Term,
    
      ..
    
      Roland Crangle and Moses Shire, for the appellant.
    
      Alonzo G. Hinkley, for the respondent.
   Spring, J.

-. The action was commenced- to cancel a deed of conveyance exe-. cnted .and -delivered by the plaintiff to the defendant in April, . 1907.. ■ . - '

' The plaintiff is the atint of the defendant, and they resided on ' farms in the sanie neighborhood in the county of Erie. The' plaintiff was .upwards - of seventy years of age, and was much afflicted and depressed by the death of' her son and only child in January . preceding. ,-The defendant, a married woman in middle life; had ■- lived in the household of the plaintiff during her early childhood, and .their relations were intimate until after the execution of the deed in controversy,' knd until-the influence of other relatives with the plaintiff had embittered her against the defendant,, who had been her favorite niece. ■

The deed was prepared by a friend .of the defendant, and the. ■ acknowledgment of its execution was taken by a notary public in • the vicinity. The story of the defendant and her witnesses is to the effect that the plaintiff voluntarily informed her that she wished. : to deed the' farm" to her,'reserving in herself a . life estate by a separate instrument. The defendant thereupon took the deed vesting the titl.e in the plaintiff to Mr. Christie, the man suggested by the plaintiff to draft the deed, and the instrument in question was prepared. • The defendant testified,that she.told Mr.'Christie that the plaintiff desired a deed with a separate life lease, and tire scrivener : said the life' estate could be reserved in the deed itself and a separate instrument conveying á life estate was unnecessary.- The deed accordingly contained these clauses : “ And the said-Sally Máttesoji does covenant with the said party of the second part as follows: That the party of the second part shall quietly enjoy tlie said premises. Subject, however, to-the life interest of the said party of the--first -part, Sally Matteson.” '

The defendant and the notary both testified that the deed was read over to the plaintiff before she executed it and the life lease, clause was satisfactorily explained, to her, and the deed was then executed and acknowledged by her and delivered to the defendant. Several witnesses testified' that the old lady told them she had conveyed the farm to the defendant, and to some that possession was not to be given until after her death. The plaintiff testified that she never knowingly executed the deed; that she signed' what she supposed was a receipt, and the instrument was not read over to her at all, and that she was in poor health with impaired hearing and vision. The weight of the evidence is very largely with the defendant on these questions of fact and the trial judge so realized.

The complaint charged the defendant with fraudulently procuring the execution and delivery of the deed to her. On this issue the court found: That the plaintiff executed said deed by her own free and voluntary act and without fraudulent inducement on the part of the defendant or any other person. That from the time of the execution and delivery of the deed above referred to and up to the trial of this action, the plaintiff continued to reside on and remain in possession of the premises described in said deed.”

The court also found that the plaintiff and the' defendant <c intended that the clause [referred to in the deed] should operate as ft reservation of a life estate in the plaintiff in said premises.”

The court, therefore, upholds the integrity of the transaction and exculpates the defendant from the charge of overreaching the plaintiff,' and further finds exactly what the parties intended, and certainly that coincides with the interpretation put upon the instrument by the defendant. As the court has found, the plaintiff has been in the undisturbed possession of the farm since the delivery ofc the deed, the samé as before, without interference or suggestion of molestation on the part of tlie defendant.

The court, however, reached the conclusion that the clause was ineffective to secure the life estate in the plaintiff, and accordingly the transaction designed was never in fact accomplished;' that there was no acceptance by the plaintiff of the use of the premises for life, and as the deed- was “ intended as a gift, and never having been consummated by a life lease of said premises, the plaintiff has the right to withhold the same.”

The complaint was not framed on any such lines as the court embodied in its decision, nor did the trial take that course. I think the legal conclusions reached by the court, are'not justified by the facts found!

It is clear that the plaintiff did accept the reservation of the life ' rise in herself. She has retained possession and received the avails of the farm and managed and controlled it. The gift was .consummated by the voluntary delivery, and acceptance of the. deed and .with the like interpretation both parties gave to the reservation . clause. ■ The defendant has never asserted any right to occupy the land and enjoy its benefits. She has been content to wait until- she became- entitled to the farm.

There is no different rule applicable to the construction of a. covenant or clause in a deed than governs- in the construction of any other instrument. The intention' of-the parties is the controlling principle of interpretation,, if that can "be fairly spelled out of the instrument. The Real .Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52] § 240, subd. 3; revising Real Prop. Law [Gen. Laws,, chap. 46; Laws of 1896, chap, 541] § 205) is' as follows.: “ Every instrument creating, transferring, assigning or surrendering án estate or interest in real property must be construed according to the intent of the parties, 'so far as such intent can be gathered-from the whole instrument, and is consistent with the rules of law.”

Full effect is given to this rule by the courts. (Clark v. Devoe, 124. N. Y. 120; Kitching v. Brown, 180 id. 414, 421; Coleman v. Beach, 97 id. 545, 553 et seq.)

In the case first cited the court, say (at p. 124):. “A covenant is simply a contradi of a special nature, and the primary rule for the. interpretation thereof is to gather the intention of the parties from their'words, by reading not simply a single clause of the agreement, but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when th'eir minds met.”

Applying this ride to the deed in controversy, it is plain,^as the court has found, that the plaintiff .intended to reserve the use of the premises during her life and that the defendant also so intended, and to add to the reasonableness of this interpretation- both-parties have given that practical construction to the clause. I can see no difficulty in carrying out this intention of the parties with the deed in its present form. The clause is unambiguous, its meaning is .obvious aud its purpose in the deed evident.

If,, however, there is any misapprehension of the meaning -of this clause the deed can readily be reformed in this action to conform to the intention of the parties. (Born v. Schrenkeisen, 110 N. Y. 55, 59.) The fact that the' deed was a gift to the defendant does not prevent the application of this rule of practice. If the conveyance was freely made and delivered, without any fraud upon the old lady, the defendant is entitled to retain what was intended to be conveyed to her. The intentional delivery of the deed vested the title in her and it ought not to be canceled to gratify the caprice of the plaintiff, and which was probably inspired by interested relatives.

The proof shows, that the parties have always been friendly and that the plaintiff had no near relatives, and apparently the defendant was the only one who cared for her in sickness, or stress of any kind. The deed of the farm to the defendant, although a gift, is not one of those unjust transactions which courts occasionally are required to pass upon and condemn.

The judgment should be reversed.

All concurred.

Judgment reversed and new trial ordered upon questions of law and fact, with costs to appellant to abide event.  