I am in full accord with the majority as to the construction of the will in this case. Burleson v. Mays, 189 Ala. 107,66 So. 36. I am persuaded, however, that Justice MILLER has correctly construed the deed executed by the heirs to Jordan F. Reynolds on November 30, 1892, and that the intention of the parties to this conveyance was as stated in his opinion. The holding of the majority is rested upon the language of the granting clause, and is to the effect that this clause determines the interest conveyed, and prevails over introductory statements and recitals in conflict therewith. I recognize the force of this position under the former decisions of this court. Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A. (N.S.) 719, cited in the more recent case of Porter v. Henderson, 203 Ala. 318, 82 So. 668.
In these cases the superiority of the granting clause is helpful as a rule of construction, but all such rules are meant as aids to the court in arriving at the true intent of the parties, and to that end I am persuaded the entire instrument should be looked to and considered in the light of the surrounding facts and circumstances, and the intention of the parties as thus ascertained be declared by the court. The rule is one of construction, and should not be exalted into a rule of positive law, and, as said by the Supreme Court of Vermont in Johnson v. Barden, 86 Vt. 19, 83 A. 721, Ann. Cas. 1915A, 1243:
"It must yield to the master rule that the intention of the parties as drawn from the whole deed must govern."
The case of Johnson v. Barden, supra, treats the question rather exhaustively, and fully supports the conclusion I have reached. To like effect is the case of Triplett v. Williams,149 N.C. 394, 63 S.E. 79, 24 L.R.A. (N.S.) 514, where many authorities are cited in the note. See, also, cases collated in the note to Whetstone v. Hunt, 8 Ann. Cas. 442; 8 R. C. L. 1046. In this latter authority it is said: *Page 680
"That the modern tendency is to ignore the technical distinctions between the various parts of the deed, and to seek the grantor's intention from them all without undue preference to any."
I forego further discussion, but, being fully convinced from the language of the entire deed, construed in the light of the surrounding facts and circumstances, that the conclusion reached is contrary to the real intention of the parties, I most respectfully dissent.