In my opinion, the fact that Abbie A. Patrick, Frank A. Howard and Shepard L. Howard joined in the warranty deed of October 4, 1889, to Joseph A. Patrick is not decisive of plaintiffs' rights. It is plaintiffs' claim that the quitclaim deeds executed by Abbie A. Patrick and Frank A. Howard to Shepard L. Howard on May 17, 1872, set out at length in the opinion of Mr. Justice MOORE, conveyed a life estate to Shepard L. Howard, with remainder over to his heirs; that plaintiffs are the heirs of Shepard L. Howard, and that their rights are in no way affected by the conveyance made on October *Page 180 4, 1889. If their claim in the first respect be well founded, the latter would seem to follow as a matter of law.
Counsel agree "that the primary object in construing the deed is to arrive at the intention of the parties." The extraneous circumstances, if helpful, may be considered. A printed form of quitclaim deed was used in preparing the deed from Francis A. Howard. The description and all additional matter were written in ink. That from Abbie A. Patrick was entirely in writing. There is nothing to indicate by whom they were prepared. The inference, I think, may be fairly drawn that neither of them was prepared by an attorney or other person who had any knowledge of the legal effect to be given to the language of a conveyance. The person who drew the deed from Abbie A. Patrick evidently copied the wording of the ordinary form of quitclaim deed then in use.
At the time these deeds were executed, the word "heirs," or its equivalent, was essential to pass an estate of inheritance.Lyon v. Hyler, 136 Mich. 76. For that reason it was inserted in the forms prepared by publishers for use by conveyancers. Had the words "to his heirs and assigns" been omitted from the granting and habendum clauses, a life estate only would have been conveyed. Having in mind the fact that these words were a part of the printed form, let us examine that which was inserted, other than by filling the blank spaces therein. The scrivener may have erred in not striking out the words quoted, but there can be no probability that he erred in that which he wrote into the instruments which was unnecessary to fill out the form as printed. He was then following the instructions which had been given him by the grantor. That so written into the deed made by Howard reads:
"And it is provided that the said party of the second *Page 181 part shall not sell the above described lands and premises, but that after his decease the above described lands and premises shall descend to the heirs of the aforesaid Shepard L. Howard."
I can but construe this as an awkward and inappropriate manner of saying that Shepard shall have the use of the premises during his lifetime, with remainder over to his heirs. The prohibition against selling can, and I think should, be construed to apply to a fee simple interest, and not to his life interest. Shepard at that time had children, and the word "heirs" was clearly intended to apply to them.
The provision in the Abbie A. Patrick deed still more clearly shows the intent. It reads:
"And it is hereby provided and the intention of this conveyance is declared to be that the said party of the second part shall have the use and possession only of the premises above conveyed, but not the power or right to sell the same, and after his decease the said bargained land and premises shall descend to the heirs of the aforesaid Shepard L. Howard."
It will be noticed that the language in both deeds, above quoted, immediately follows the description, and forms a part of the granting clause.
In seeking to reach the intent of the grantors, we may take into consideration the fact that they were here conveying to their brother the interest they had acquired in this property as heirs of their father. It was not a matter of purchase and sale. It was doubtless for this reason that the form of quitclaim instead of warranty deed was used.
I cannot read these deeds as an entirety, having in mind the extraneous circumstances above stated, without reaching the conclusion that the intent of the grantors to convey a life estate to their brother, with remainder over to his heirs, is clearly shown.
It seems useless to cite authorities to sustain this view. Any effort to harmonize the holdings of this *Page 182 or other courts, where somewhat similar questions were presented, will but lead to confusion. All, however, seem to agree that such a construction should be had as will give effect to the intention of the parties, and that such intention, if it can be ascertained, should not be defeated by a strict technical construction of the form of the conveyance adopted.
Neither of the counsel cite our holdings construing somewhat similar provisions in wills. It may well be said that they are not applicable. In a deed it would seem that the parts inserted in writing in the printed form have received the special attention of the person executing it. In a will, which is all written, this presumption could not well be said to apply to any one provision more than another.
One other question must be considered. Defendants urge that plaintiffs are barred from recovery by the statute of limitations. Shepard L. Howard did not die until August 25, 1918. Plaintiffs were not entitled to entry and possession until that time. In Lowry v. Lyle, 226 Mich. 676, it was held (quoting from the syllabus):
"Adverse possession by or under the life tenant did not commence to run against the remaindermen until their right of entry and possession accrued at the death of the life tenant."
The judgments in each of the cases should be reversed, with costs to appellants, and new trials granted.
McDONALD, C.J., and CLARK and WIEST, JJ., Concurred with SHARPE, J. *Page 183